Police: Reorganisation

Lord Waddington: asked Her Majesty's Government:
	How they propose to ensure local accountability of policing if current police authorities merge.

Lord Bassam of Brighton: My Lords, we have had extensive discussions with the Association of Police Authorities and others about how to strengthen local accountability as we move to strategic police forces. Central to that will be the roll-out of neighbourhood policing by 2008. In addition, we are strengthening the effectiveness of crime and disorder reduction partnerships to ensure that local police commanders and other partners are answerable to the communities that they serve.

Lord Waddington: My Lords, I thank the Minister for his reply. Does he agree that the,
	"wholesale amalgamation of the smaller police services . . . will remove local policing further from local people when there is no evidence that it will create a more effective police service"?—[Official Report, Commons, 5/7/94; col. 273.]
	Those were the words of the Prime Minister when in opposition in 1994. Furthermore, is it not obvious that a few regional forces will be far more easily controlled by the Home Secretary than the present 43 forces? When, in addition, the Home Secretary has the sweeping powers that he will be given if the police and criminal justice Bill becomes law to give orders to chief constables on how to run their forces, will we not have taken a gigantic step towards a national police force?

Lord Bassam of Brighton: My Lords, I am intrigued by the quotation from 1994—12 years ago. Much has changed since then. The public want to see more police officers on the streets, and under Labour they have. They have also seen a 35 per cent reduction in crime. That has been achieved under Labour in government. We need effective strategic police authorities and local accountability to ensure that the basic command units work well to deliver the policing service that we need in the future.

Lord Bradshaw: My Lords, in Thames Valley—the force which I am a member of—each constituent authority has one representative. If it is made larger, they will have none. Yet we are urged by the Home Secretary to get involved in community policing so that we can bring policing closer to the people. Those two things are in contradistinction. Will the Minister tell officials at the Home Office that local policing can be delivered only if local representatives are involved at the strategic level of policing?

Lord Bassam of Brighton: My Lords, I pay tribute to the noble Lord, Lord Bradshaw, for his important work on Thames Valley Police Authority. I am sure that he brings his distinct abilities and qualities to that important role. However, I cannot agree with his comment that having local representatives on the police authority, which is a larger structure, necessarily affects in any way the way in which local police services are delivered. This morning, my local councillor said that what worked best for her was action that worked at the borough level and through the crime reduction partnerships, as that has a real and meaningful impact on how operations work locally to tackle important issues such as drugs, robbery and burglary—real crimes that people suffer from.

Lord Taylor of Blackburn: My Lords, is my noble friend aware that some of us who were involved in local government in the 1970s said exactly the same thing as the noble Lord, Lord Waddington, is saying now when there was an amalgamation of the county boroughs into the county? Does he agree that in Lancashire we have not lost any efficiency because of that amalgamation? In fact, we have gained through it. The only worry in Lancashire when joining up with Cumbria was whether we would have the right funds—not the representation. We are happy with the representation that we have.

Lord Bassam of Brighton: My Lords, I entirely agree with my noble friend. Funding is linked to accountability and is an issue on which the Home Secretary has made a clear commitment to consulting in the future. That will ensure that police forces, however they are organised, are well funded, so that people can rely on them to deliver the services that they want.

Baroness Seccombe: My Lords, not 10 years ago but on 25 January this year, in another place, the Prime Minister cut the ground from under the Home Secretary's feet by showing no commitment whatever to force amalgamation. He said:
	"we will listen carefully and there are several different directions that reform could take".—[Official Report, Commons, 25/1/06; col. 1426.]
	The Government have just done a U-turn on schools. So can the Minister save himself and all of us a lot of trouble by announcing a U-turn on the abolition of local police forces?

Lord Bassam of Brighton: My Lords, I do not think that there is a fig leaf between the Prime Minister and the Home Secretary on the issue. What the Prime Minister sought to make clear was that the Government were in listening mode. Of course we are listening to what people have to say about the reorganisation because it is terribly important. No doubt, back in 1994 when he put in place the legislation that provided for the easy merger of police forces, Michael Howard had the selfsame thought in mind.

Lord Imbert: My Lords, if there are to be territorial amalgamations, should not Thames Valley, an excellent example of an amalgamation, be the model for the future? Thames Valley is the result of the amalgamation of five small forces that were dragged kicking and screaming into one police service. Now it is an effective and efficient service. It could act as a perfect model for the future.

Lord Bassam of Brighton: My Lords, I am sure that the noble Lord, Lord Imbert, is right to highlight the fact that we can learn much from the mergers that have taken place over the past 40 years following the Police Act 1964. I do not doubt that the Thames Valley merger brought together forces that needed to work together to tackle crimes that know no boundaries.

Lord Roberts of Conwy: My Lords, first, is the noble Lord aware of the widespread and increasingly intense opposition to the hasty amalgamation proposed for Wales? I understand that there has been no consultation with the National Assembly, which has a view on the matter. Secondly, how on earth can the Government carry out their neighbourhood policing policy while the amalgamation is taking place?

Lord Bassam of Brighton: My Lords, neighbourhood policing is a day-to-day operational issue worked out in consultation with the local community through its elected representatives, local authorities and all those who form the various partnerships. That will continue regardless of amalgamations. Of course, a degree of concern has been expressed in Wales about aspects of a merger, but I am sure that people in Wales want to see a good, efficient and high-quality police service for that country to ensure that the issues that trouble them—drug taking, burglary and crimes of violence—are tackled effectively. As I said earlier, crime knows no boundaries. We have to wake up to that fact if we want to have a police service that is fit for purpose.

Common Agricultural Policy:Agri-environmental Schemes

Lord Renton of Mount Harry: asked Her Majesty's Government:
	What effect the reduction in funding for Pillar 2 of the common agricultural policy over the period 2007–13 will have on new agri-environmental schemes in the United Kingdom.

Lord Bach: The recent European Council agreement included the setting of an EU level budget for Pillar 2 for seven years that was in line with existing expenditure. However, the allocation to each individual member state has yet to be agreed. Importantly, the agreement also included an option for member states voluntarily to modulate up to 20 per cent of funds from Pillar 1 to Pillar 2 with optional national co-financing. That provides UK administrations with continued flexibility to fund agri-environmental and other schemes.

Lord Renton of Mount Harry: My Lords, I thank the Minister for that Answer, but I remind him that the new CAP budget has to cover 25 countries as well as Bulgaria and Romania, as opposed to 15 countries previously. The possible move from subsidies for crop production to more environmentally beneficial farming is welcome. Is it not the case, however, that the amount of money for Pillar 2 is very insecure and that it is likely to be cut in order to keep up single farm payments? How much switch from crop subsidy to agri-environmentally friendly farming does the Minister envisage, and by how much will the Treasury be willing to match it?

Lord Bach: My Lords, I pay tribute to the noble Lord and his Sub-Committee D, which produced an important report last year in which it encouraged the concept of voluntary modulation. To that extent, at least, I hope that it is relatively pleased with what we achieved in the budget.
	The deal means that EU rural development expenditure is maintained at roughly the current level, but if you add in the compulsory EU modulation, which arises from the 2003 reforms, the focus of the CAP on rural development in the next financial perspective will be greater than under the current one, and that is before you add whatever degree of voluntary modulation is chosen. I make no secret of it: we would have preferred there to have been greater movement from Pillar 1 to Pillar 2 in the guaranteed money in the Commission's budget. We regret that, but we think, having got the greater freedom to transfer voluntarily, that we have achieved a lot.

Lord Tomlinson: My Lords, have the Government not previously stressed that they favoured expenditure in Pillar 2 rather than in Pillar 1? In the budget deal agreed in December, did they not agree cuts in Pillar 2? Has there been a reversal of policy or a change of view in the Government on CAP reform?

Lord Bach: No, my Lords. We remain committed to CAP reform and an increased emphasis on Pillar 2. If we had a free hand to write the budget, the relative levels of spending that were agreed for Pillars 1 and 2 are not what we would have chosen. A number of member states expressed a clear view in the negotiations that at this stage they would not accept reductions in the funding for Pillar 1. In our view, the EU budget review in 2008-09 provides an opportunity for real change. The Vision for the Common Agricultural Policy, published by my department and the Treasury last December, sets out the case for that reform, and we need to continue the debate in Europe on how it can be achieved.

Lord Livsey of Talgarth: My Lords, will the Minister confirm that the possible reduction in Pillar 2 of CAP funding will prevent the development of new rural businesses, while at the same time making a significant reduction in the single farm payments through modulation? How is it that the Prime Minister managed to give away billions of pounds of rebate in the negotiations, while, at a stroke, we in the UK are now looking at a reduction in Pillar 2 and the single farm payments?

Lord Bach: My Lords, the noble Lord spoiled his question with his comment on the rebate. With regard to the serious part of what he had to say, we realise that some farmers are concerned about a transfer from Pillar 1 to Pillar 2. Modulation will certainly have an effect on the amount of subsidy that a farmer receives, but it will not affect their ability to compete. The whole point of the 2003 reform—as I understand it, it has cross-party support, including the noble Lord's party—was to remove that link between subsidy and production, making CAP subsidies less distorting. Before we decide how much we should voluntarily modulate, we will pay particular attention to the impact on the farming sector.

Lord Pearson of Rannoch: My Lords, will the Minister explain why we stay in the common agricultural policy when it not only creates the difficulties raised by this Question but also kills millions—mostly children—in the developing world? Why do we not just organise our agriculture in our own interests and those of the least fortunate people on the planet, without passing our hard-earned billions through the corrupt filter of Brussels?

Lord Bach: My Lords, we stay in the common agricultural policy because we are members of the European Union, and I for one am delighted that we are members of it. However, our criticism of the CAP, while perhaps not using exactly the same words as those of the noble Lord, has been pretty adamant during the past few years. We have done something about our criticism of the CAP, and it led to the reforms of 2003. If we had had our way, there would have been greater reforms by now.

The Lord Bishop of Chester: My Lords, does the level of suicides among farm workers and farm owners in the countryside provide ample evidence of a crisis in British agriculture, leading to the need for a longer-term strategy of support for the countryside and agriculture alike, beyond the mechanics of the common agricultural policy?

Lord Bach: My Lords, the level of suicides is indeed worrying. I am grateful to the right reverend Prelate for having referred to it. Whether or not the correct word is "crisis", there is certainly a lot of anxiety in the countryside. One of the reasons for that is the enormous change that is happening in the countryside and, particularly, in the farming industry. It needs to be handled with great sensitivity and care, but there can be a successful farming industry in the United Kingdom if it is modernised and does not rely on subsidy. Subsidy is what makes people dependent, and it has been in existence for too long in the farming industry.

Carers

Baroness Pitkeathley: asked Her Majesty's Government:
	How they will ensure that government departments co-ordinate their initiatives to improve carers' health, well-being and opportunities for work and leisure.

Lord Warner: My Lords, the Government have worked hard to improve support for carers and are determined to do even more. Our new White Paper, published last week, proposes a range of measures for improved carer support, including an information helpline, an expert carers programme and emergency respite care. The existing carers steering group, comprising representatives from several government departments, will co-ordinate implementation of those measures to improve the health and well-being of carers.

Baroness Pitkeathley: My Lords, I thank my noble friend for that helpful reply and for all the attention paid to carers in the recent White Paper. He will, I think, be aware that ITN is running a campaign for carers in association with the lunchtime and evening news bulletins. Entitled "Who Cares?", it aims to raise the profile of carers. One of the things that it is calling for is a carers tsar, who would co-ordinate and spearhead policy across departments. Will the Minister give the Government's reaction to that suggestion and indicate when the review of the national carers strategy, launched in 1999, will begin?

Lord Warner: My Lords, I am sure that the whole House pays tribute to the work that my noble friend has done in the interests of carers over the years. I am aware of the ITN campaign, and we welcome the higher awareness of carers' issues that it achieves. With regard to a carers tsar, my noble friend will be aware that we already have a number of national clinical directors—for example, for social care, older people and disease-specific groups such as cancer and diabetes—who pay great attention to the issues of carers. As part of the White Paper follow-through, we will encourage councils and PCTs to have a carers lead to develop services locally.

The Earl of Onslow: My Lords, will the noble Lord help on this question? NICE made a decision a month or so ago on Alzheimer drugs, but it failed to take into account, when balancing the cost of the drug with the cost of carers, that the drug cost £2.50 a day and carers cost an enormous amount more. Will he please make sure that, when NICE makes its decisions, it takes into account not only the medical aspects but the cost to social security budgets and the cost of caring?

Lord Warner: My Lords, I am sure that the noble Earl is aware that, in the case to which he refers, NICE went out to consultation and listened to the comments made. It has reconsidered its position on the group of drugs involved in that study and has put forward revised proposals for further consultation. I do not wish to comment further until that consultation process ends.

Baroness Greengross: My Lords, does the Minister agree that there is now an increasing number of carers caring for longer and longer because medical advances ensure that the people they care for have a longer life expectancy? Many of those carers need and wish to work for all the reasons that we understand. Therefore, a much more flexible working pattern is essential. A very good example is that created by BT, which many more employers need to follow. A tsar or somebody with the task of co-ordinating the work that is done for carers could encourage such an initiative and perhaps ensure that it happens.

Lord Warner: My Lords, the noble Baroness is right. The 2001 census showed that in England and Wales there were 5.2 million carers—one in 10 of the population. We wish to encourage employers to show flexibility in the arrangements for staff who have caring duties. I will not repeat the answer that I gave to my noble friend Lady Pitkeathley on a tsar, but we are well seized of the need to support carers in this area.

Baroness Barker: My Lords, will the Minister answer the question asked by the noble Baroness, Lady Pitkeathley, about when the national carers strategy would be reviewed? When will that review commence? When will it be complete? That information is essential to local authorities, which will have to introduce the White Paper provisions on a cost-neutral basis.

Lord Warner: My Lords, we have already started the national carers strategy review. The White Paper set out some of the agendas that will be tackled in that area.

Lord Ashley of Stoke: My Lords, before we get to the new legislation based on the White Paper, does my noble friend recall the Carers (Equal Opportunities) Act, passed three years ago? What are the Government doing to implement that Act?

Lord Warner: My Lords, we are taking that agenda forward, as we always do with regard to carers. I will give further and better particulars to my noble friend in writing.

Lord Colwyn: My Lords, I am sure that the Minister is aware that this week is eating disorders awareness week. Following the helpful comments of his honourable friend Rosie Winterton yesterday, could he confirm that the Government recognise the tremendous work done by the parents and carers of the 1.1 million young people who suffer from these disorders?

Lord Warner: My Lords, I was aware of it. I always support my honourable friend Rosie Winterton, and I confirm my support for what she said.

Baroness Massey of Darwen: My Lords, is my noble friend the Minister aware that some grandparents are caring for their grandchildren because their own children are incapacitated in some way? I come across this as chair of the National Treatment Agency with drug-using parents. Grandparents who are carers are given little support and respite, yet they save the state a lot of money. What is the Government's view of that?

Lord Warner: My Lords, we recognise that some grandparents provide care. In those circumstances, they can claim child benefit and possibly child tax credits. Local authorities are in such circumstances empowered to assist with the care of children and young people who are not looked after.

Baroness Morgan of Drefelin: My Lords, I am sure that my noble friend the Minister agrees that—

Baroness Amos: My Lords, we are in the 24th minute of Questions.

Oil Companies: Northern Ireland

Earl Attlee: My Lords, on behalf of my noble friend Lord Glentoran and at his request, I beg leave to ask the Government the following Question. In doing so, I remind the House of my interest as president of the Heavy Transport Association.
	The Question was as follows:
	To ask Her Majesty's Government what assessment they have made of the likely impact on the local economy and tax revenues of the proposed withdrawal of major oil companies from Northern Ireland.

Lord Rooker: My Lords, the major oil companies have not withdrawn from Northern Ireland. My understanding is that for commercial reasons there has been a change of ownership in the petrol market, with the major oil companies divesting themselves of their retail assets; that is, the forecourts. The change of ownership is not thought to have had a material impact on the key economic variables that pertain to that sector or the economy as a whole.

Earl Attlee: My Lords, I thank the Minister for that reply, but I think that he will understand the reasons for the petrol companies' decision. Does he recall that the fuel policy I introduced on 17 January last year provided that all heavy goods vehicles leaving Great Britain should do so with a nearly full tank of fuel? That policy also facilitates harmonising the rate of duty on road fuels between the north and the south of Ireland. Would that not do a great deal to alleviate the current difficulties?

Lord Rooker: My Lords, I recall the innovative suggestion that the noble Earl made at that time and, indeed, the response from my noble friend Lord Davies of Oldham to bring the matter to the attention of Her Majesty's Revenue and Customs. On tax harmonisation, the fact is that we have a UK tax system designed by the Treasury, and there are no proposals to change it.

Lord Hylton: My Lords, has the Minister noticed in the course of his travels that at present there is hardly a single petrol or diesel outlet left within about 15 miles of the border with the Republic? Is that not due to the lack of harmonisation of tax rates?

Lord Rooker: My Lords, there are several factors at play. In less than the past 10 years the supermarkets have moved into petrol retailing. Customers have decided, as indeed any cost-conscious motorist in this country does, that they will not fill up on the motorway. If one is cost-conscious, one moves off the motorway. People have chosen to take advantage of going south to purchase legitimately—it has nothing to do with smuggling. There is bound to be a change in the market. However, there are still some 400 or 500 petrol retail stations in Northern Ireland.

Lord Smith of Clifton: My Lords, does the Minister agree that one of the greatest losses of revenue comes from the smuggling activities of some paramilitary organisations across the border and the doctoring of agricultural diesel fuel? Does he agree that, if a blitz was made by Her Majesty's Revenue and Customs on retailing outlets, there would, given the amount of fuel sloshing around, be fairly easy pickings for it? Should it not get on and do that?

Lord Rooker: My Lords, the point is well made, but there has been a lot of activity. Last week, for example, the Assets Recovery Agency froze assets worth more than £700,000 from alleged fuel smugglers. Both cases were referred by Her Majesty's Revenue and Customs. Between April 2000 and March 2005, HM Revenue and Customs seized 10 million litres of illicit fuel; disrupted 17 organised crime gangs; dismantled 77 laundering plants; seized more than 4,000 vehicles; and secured 27 convictions for oil fraud. There is a serious issue. If people in Northern Ireland complain subsequently that their engines do not work because someone doctored the fuel with acid and they did not remove the acid before the sale took place, they have only themselves to blame for buying from bucket shops.

Lord Rogan: My Lords, the noble Lord, Lord Smith, is correct. Does the Minister agree that the problem could be reduced if more resources were available to HM Revenue and Customs on the ground? A precedent for self-funding has been set by the Assets Recovery Agency, which uses some of the assets recovered to fund itself. Could not that precedent be adopted by HM Revenue and Customs?

Lord Rooker: My Lords, I am not being over-defensive. There are serious problems, but they are being addressed. Since 2005, HM Revenue and Customs has increased the number of officers engaged in tackling oil fraud in Northern Ireland from 25 or 26 to more than 160. It has maintained that level of resource since that time. Lessons are being learnt. The Organised Crime Task Force is looking at options for how petrol-licensing powers can be announced. We have to knock the issue on the head; it is a serious problem that must be addressed. It is not all about smuggling, however. There is the issue of cross-border sales and the introduction of supermarkets into retail, which has been an innovation in the past few years but is bound to have distorted the market.

Lord Laird: My Lords, is the noble Lord aware that the major problem, as we see it, is fuel laundering? Despite the fact that three plants were closed down last week, there are still nine plants in south Armagh. One of the plants was owned by a fellow called Michael Carragher, known as the south Armagh sniper, who murdered nine members of the security forces and was given a plant to launder fuel by the IRA, together with a house.
	Does the Minister also recognise that there is an environmental problem? On the orders of Slab Murphy, a group of men dumped 45 tonnes of toxic acid, which was used to make 3 million litres of diesel fuel, at Conra wood on 15 January. Is it not about time that the Government clamped down on this multimillion-pound industry, which is distorting the economy of Northern Ireland and is helping the IRA to fund its illegal activities?

Lord Rooker: My Lords, I have to presume that those very specific allegations have already been brought to the attention of the authorities.

Lord Cope of Berkeley: My Lords, does the Minister think that the noble Lord, Lord Laird, is correct in the assumption behind his remarks that most of the smuggling that HM Revenue and Customs is so vigorously tackling—as it was some years ago as I recall—is IRA-based and that the benefits of the money that should go to the UK taxpayer actually go to fund the paramilitaries?

Lord Rooker: My Lords, the only thing that I can do on that is refer noble Lords to paragraph 321 of the Independent Monitoring Commission report published last week, which states:
	"However, members and former members of PIRA continue to be heavily involved in serious organised crime, including counterfeiting and the smuggling of fuel and tobacco . . . Overall, taking the activity of paramilitary and other organised crime as a whole, there appears to be no diminution in the amount of these illegal goods".
	That was published by the IMC last week.

European Union (Accessions) Bill

Read a third time.

Lord Triesman: My Lords, I beg to move that this Bill do now pass.
	Moved, That the Bill do now pass.—(Lord Triesman.)

Lord Howell of Guildford: My Lords, although we on this side strongly favour the Bill, it would be a pity to let it now pass without a few comments on its historic significance and on some of the implications. I hope that the Minister will want to join in with a few comments. The Bill legitimises, at least in this country, our agreement to the accession of Bulgaria and Romania to the European Union. The plan is that that should take place in January next year, which is only 12 months away—the Bill provides for the possibility that there might be some delay, as indeed there might be, because the schedule is obviously extremely demanding.
	Allow me to note one or two implications and facts in relation to the Bill. First, the last big accessions Act, in May 2004, brought in 10 new countries, including eight from eastern and central Europe. In the 17 months that followed, some 293,000 workers from those new member states registered here. It is extraordinary how well the nation, or society, has succeeded in absorbing that colossal number. In that period, we have probably absorbed about three times the size of the entire Huguenot arrivals at the end of the 17th century. It has been one of the biggest and swiftest immigrations ever into this country—into which there have been immigrations for well over 1,000 years—and yet it has been absorbed in a way that has hardly raised any social comment or disruption anywhere. It has been one of the greatest inflows of modern times.
	The nation can therefore pat itself on the back as we give the Bill its Third Reading. However, I am not sure that I extend such generosity to the Government, because their estimate of some 13,000 workers registering—which is not the same as immigrants for settlement, which might come later—was, to put it mildly, wide of the mark. Anyway, a very large number—some 300,000—have disappeared or settled into industries across the country. While the availability of the facts is not at all good, and there is a case for more illumination from the Government, we think that those immigrants have gone largely into the construction and service industries, such as restaurants and plumbing—the proverbial Polish plumber has featured on the scene.
	My party colleagues and I believe that all of this has been of considerable benefit to the national economy, as will any additional flows that result from the accession of Bulgaria and Romania. Why has this huge flow occurred? Why has Britain proved to be the obvious destination of choice? One reason was embodied in the previous accession Bill—namely, that Her Majesty's Government decided against any restrictions during the transition period, both before and after accession by the 10 countries involved, whereas most other EU countries decided to have restrictions. Indeed, 10 of those countries are now reviewing whether they should keep the restrictions, which will lapse if they are not renewed on 1 May this year. I hope that there are many other reasons why this country proved to be so attractive, but a clear reason was that restrictions were in place elsewhere. Presumably, lifting them might make some difference to the pattern of flows.
	This is an important moment for Bulgaria and Romania. We all wish the negotiators well—those seeking to make a place for those countries in the European Union at a time when the EU is undergoing considerable transformation and is seeking new directions after the collapse of the ambitions for a detailed new constitution. We hope that Parliament will be kept very well informed as the flow of workers from Bulgaria and Romania who register here builds up, as it will. Indeed, I hope that we are better informed than during the previous round of accessions. We hear many figures and have many debates about non-EU immigration and worker settlement in this country, but my impression is that the availability of figures on the pattern of movements within the EU has not been so good. We might benefit from closer monitoring and more regular reporting to Parliament, which was the idea behind some of the amendments that we moved at an earlier stage.
	These newcomers are an asset, as has been the case with most of the migrants who have settled here through the centuries. We welcome the Bill, as we welcome the skills that the new migrants bring, but it would be nice to know that Parliament will be kept closely informed about what happens over the next one, two, three and five years as these countries find their place inside the Union.

Lord Dykes: My Lords, I rise to say only a few words, because there is some surprise at the limited, but none the less detailed, points made by the spokesman for the Opposition Benches, who has just spoken. These matters were thoroughly aired at all stages of the Bill. Quite rightly, no further points were made on Report, because no amendments had been made in Committee.
	Quite legitimate anxieties were expressed at Second Reading and in Committee in the Commons and in our House, although not so much on the treaty accession points—important as they are—as on immigrants coming in from the two countries. To some extent, those points have been answered by the Government, although now that the matter has been raised again, I would welcome it if the Minister reiterated answers to reassure the House and if he said something about the fact that we are getting closer to the end of April and the beginning of May, when the Commission has promised its extremely detailed report on the monitoring activities and its recommendations about whether January 2007 or January 2008 should be the target entry date. Many opinions are floating around on this and much goodwill has already been expressed strongly in all parts of the House about the entry of those two countries, but, none the less, there is a wish to have further information, if that is available.

Lord Biffen: My Lords, my noble friend who spoke from the Opposition Front Bench said that it was important to keep Parliament informed as the negotiations proceed. I want to raise a narrow point that has not been mentioned hitherto in these debates. I refer to the unhappy decision to call off the proposed visit of Romanian parliamentarians by the Inter-Parliamentary Union. I make no comment on the wisdom or otherwise of that decision, except to say that, ironically, it is extremely unhappy that, at a time when we ought to be able to inform ourselves of what the challenges might be for us, we should not be able to understand further what the upheavals that will inevitably follow within the administrations of Romania and Bulgaria will mean. My request of the Minister is that the Foreign Office will do all that it can to facilitate visits from those countries, obviously with co-operation from the Inter-Parliamentary Union, and see that the visit from Romania will be reinstated as speedily as possible.

Lord Triesman: My Lords, over the various stages of the Bill there have been excellent debates in your Lordships' Chamber. Everyone is familiar with the terms of the Bill, but this is a moment at which to acknowledge and welcome the cross-party support that there has been at all the vital stages for the principle of European Union enlargement and accession. The noble Lords, Lord Howell and Lord Dykes, have made that point. The noble Lord, Lord Howell, used the word "historic", and I completely concur with him. This is such a moment.
	Enlargement of the European Union is, of course, a policy that has made an enormous contribution to stability and prosperity across the whole continent. I am glad to say that it is an issue on which parties and the House have been consistently united. The point made by the noble Lord, Lord Howell, is absolutely true. A large number of people have come to this country, bringing with them abilities and skills. They have been welcomed by this country in a way that demonstrates its civility and its ability to welcome people, to absorb them and to give them a place within our social order. Alongside that, more economic activity and prosperity have been created, all of which is a great reflection on what we, as a nation, are capable of and for which we sometimes do not give ourselves credit, much less receive it from others.
	The ratification of the accession treaty for Bulgaria and Romania is only one aspect of the process. The real achievement has been the largely successful reforms of the political, judicial and economic structures of the two countries. I pay tribute to the remarkable work of both governments and both peoples. As has been said, that is of the greatest importance for those countries.
	However, they are not there yet. The point has been made that there may be delay. There certainly needs to be the closest possible reporting and it is right that Parliament should hear those reports. I completely agree and confirm the proposition made by noble Lords, including the noble Lord, Lord Biffen. Indeed, the European Commission's autumn monitoring reports found some worrying areas of concern, not least in the areas of corruption, organised crime, environmental pollution and the ability of both countries to absorb EU funding streams. I look forward to the next report—I believe it will be on time—to see whether we are making real progress. However, we are of the view that there is plenty of time in this process for Bulgaria and Romania to address the areas of most serious concern identified by the Commission and consequently to take their rightful place within the European Union on 1 January 2007. I am optimistic about that.
	What would it mean for us? An enlarged EU is an EU better able to meet the challenges we now face. As your Lordships are aware, there is regional instability in our neighbourhood and on our borders. It is because we face these new collective challenges that we need and value Bulgaria and Romania as European partners. I will not go into detail—I am sure nobody would want me to do so—but counter-terrorism, the combating of organised crime, the provision of military support and the development of prosperous communities are all areas where the benefits of this enlargement will become clear. They will become even clearer if parliamentarians are indeed able to visit each other's countries and share in each other's understandings. I am certainly willing to say to the noble Lord, Lord Biffen, that I will do all I can to facilitate parliamentary visits in both directions, to ensure that that kind of discussion takes place.
	I conclude by returning to the point I made at the outset: EU enlargement has always had the support of all parties across this House. This consensus has enabled the United Kingdom to play a leading role in driving forward a policy that is fundamentally in our interests, the interests of our EU partners and the interests of these two accession states. I am glad, once again, that the House has come together to send such a clear message in support of the accession of Bulgaria and Romania to the European Union. Of course, we have to make sure that they are ready for membership, and we will do so, but today I believe that we can be optimistic that two important partners will soon become members of the enlarged, outward-looking Europe, seeking to meet the challenges of the coming decades.
	On Question, Bill passed, and returned to the Commons.

Immigration, Asylum and Nationality Bill

Report received.

Baroness Ashton of Upholland: My Lords, before I move Amendment No. 1, I wonder if your noble Lordships would indulge me for a moment in remembering Lord Chan? Others are far better placed than I to talk of his incredible role in health, race relations and academic life. In the context of this Bill, I am reminded by his absence of his support and advocacy, at Second Reading, of the Chinese community in particular. He set out compelling arguments in support of the Chinese food industry; he reminded us of the need to continue welcoming the large number of Chinese students who come to the United Kingdom; and he reminded us of the amazing academic attainment of those members of the Chinese community who stay in the United Kingdom, and contribute so fully to our economic life.
	I committed to Lord Chan that I would meet representatives of the Chinese community and I have fulfilled that undertaking with two meetings thus far and a commitment to further meetings with them. In doing so, I seek to address their concerns, to reassure them about the focus and direction of government policy, and to listen carefully to the issues raised. Lord Chan will be sorely missed. In honouring my commitment to him, I also seek to honour his memory.

Lord Lea of Crondall: My Lords, I am sure the whole House will appreciate that the Minister took this opportunity to pay a very generous tribute to the late Lord Chan, whose last contribution in the House was his remarkable speech on the Second Reading of this Bill on 6 December 2005. We are glad that the noble Baroness has informed us today of her important meetings with the Chinese community, following up the questions raised by Lord Chan in that debate. As my noble friend has pointed out, his intimate knowledge of the Chinese community brought a unique and invaluable experience and, on that occasion, a clear explanation of some of that community's anxieties about aspects of this Bill—anxieties which we all hope can be relieved. That link was, of course, far from being his only contribution to this House, but it is one we can salute here and, indeed, one which can, we hope, continue in some way as part of his legacy.

Lord Williamson of Horton: My Lords, I shall support Amendment No. 1 when it is moved, but like the noble Lord, Lord Lea of Crondall, I have looked back at the Second Reading debate on 6 December, and in particular at the speech of Lord Chan, to which reference has been made. In his modest but forceful way, Lord Chan—whose recent and sudden death we all, in particular his friends among the Cross Benchers, so greatly regret—raised points of importance to the Chinese community on appeals and the removal of settlement rights under the five tier points system.
	For me, it is a matter of great satisfaction that the Minister has recognised the importance of the points raised by Lord Chan, continued the contacts with the Chinese community and is willing to see whether solutions can be found. There is therefore a welcome continuity, despite the sad death of our colleague, Lord Chan.

Baroness Anelay of St Johns: My Lords, Lord Chan brought welcome expertise to this House. He spoke modestly, with commonsense and compassion. I shall certainly miss him. I also welcome the fact that his representations on behalf of the Chinese community have been so extensively and properly taken up by the Government.

Lord Dholakia: My Lords, on behalf of those on these Benches, I pay tribute to Lord Chan. I had known Lord Chan for more than 20 years, since his appointment to the Commission for Racial Equality and through his continued membership of a number of other public bodies. He was the first people's Peer to be appointed to the House of Lords. As a member of that commission, I am delighted that our judgment was proved right in his particular case.
	Human rights, race relations and issues related to his personal profession of medicine were close to Lord Chan's heart. In an unassuming way, he reflected those issues in your Lordships' Chamber. More interestingly, by his contribution to the Second Reading of this immigration Bill, he was able to highlight issues affecting the Chinese community. He was at the forefront of such issues and we recollect his contribution to our debates on the tragedy of the Morecombe Bay cockle pickers. To an extent, he activated the Chinese community, which was reflected in a number of meetings we all had.
	I attended a Chinese New Year function last night at which I met a Chinese representative. I was told that they all miss him. One thing that came out clearly was appreciation of the Minister's indication of how she will take the issues forward. We are all grateful for that.

Clause 1 [Variation of leave to enter or remain]:

Baroness Ashton of Upholland: moved Amendment No. 1:
	Page 1, line 3, leave out subsections (1) to (4).

Baroness Ashton of Upholland: My Lords, in moving Amendment No. 1, I shall speak to the other amendments in the group. This group of amendments has been proposed in response to concerns and suggestions raised during Grand Committee in your Lordships' House and elsewhere. I am grateful to all noble Lords and to members of different stakeholder groups who have made representations to me. As noble Lords will see, these amendments will confirm in-country rights of appeal against variation decisions, as is the case under existing legislation.
	We maintain that it is important to create an effective single appeals system. Throughout the passage of the Bill, there has been a great deal of agreement in your Lordships' House that that is an important principle. We have therefore created within this group of amendments a new power to make removal decisions in order to achieve this.
	Under these provisions, appellants will be able to contest variation and removal decisions at the same appeal, while continuing to remain in the UK with continuing leave. The amendments fit into the wider strategy of implementing an end-to-end migration process and will incorporate other elements of the five-year strategy. As your Lordships will know from this legislation, that includes the introduction of e-borders, for example, which will help us to know when people comply with the terms of their leave.
	I will briefly speak to each amendment so that noble Lords can see how they fit together. Amendments Nos. 1, 2 and 3 are part of a package of government amendments which confer in-country appeal rights on a broad range of applicants. First, the existing right of appeal against decisions to refuse to vary and to curtail leave will be retained by virtue of Amendment No. 1. As a result, it is no longer necessary to confer a separate right of appeal against variation decisions for specific categories of leave. Clause 1(4) is therefore deleted.
	Our intention behind these amendments is to allow variation and removal decisions to be made simultaneously and for both decisions to be contested at the same appeal. These amendments will ensure that variation appeals fit into the wider strategy of implementing the end-to-end managed migration process.
	Amendments Nos. 4 and 5 are consequential to the package of provisions that we have introduced to ensure that in variation, curtailment and revocation cases there should, so far as is possible, be a single in-country right of appeal at which the enforcement decision can also be considered. As a result of the retention of variation and curtailment appeals by virtue of Amendment No. 1, it is no longer necessary to allow people to raise previous decisions as grounds for appealing against a removal decision. Therefore, Amendment No. 4 removes this provision. Amendment No. 5 makes a consequential change.
	Amendments Nos. 12 and 13 provide continuing leave for people who are bringing an appeal against refusal to vary, curtailment and revocation of indefinite leave. This means that people will be able to exercise an in-country right of appeal and benefit from continuing leave during that appeal. Amendment No. 12 corrects a technical problem with the existing continuing leave provision in Section 3C of the Immigration Act 1971. Under the current version of Section 3C leave continues while an appeal could be brought without specifying whether to trigger an extension of leave; the appeal can be brought in the UK or elsewhere.
	Amendment No. 12 inserts a condition that leave will be continued only where appeal may be brought in the UK or where such an appeal is pending. The change has been made to make it absolutely clear on the face of legislation that leave will be continued only where an appeal against a decision to vary leave could be brought in-country.
	Amendment No. 13 is designed to ensure that the continuation of leave provisions provides an appropriate period of extended leave for applicants who are challenging decisions to curtail limited leave or to revoke indefinite leave to remain. It will bring the position for these appellants into line with the present position for persons who are challenging a refusal to vary leave. At the moment, leave is continued for appeals against refusals to vary decisions by Section 3 of the Immigration Act 1971 whereas for curtailment and revocation decisions leave is continued by Section 82(3) of the Nationality, Immigration and Asylum Act 2002.
	The provisions of Section 82(3) of the 2002 Act do not extend leave beyond its original expiry date. Therefore, it is theoretically possible for a person's limited leave to expire midway through the currency of their appeal. To address that problem and for the benefit of coherence, Amendment No. 13 will bring all of the continuation of leave provisions into the same format and will extend leave in curtailment or revocation cases during the period in which an appeal against such a decision could be brought or is pending.
	Amendment No. 14 removes Clause 13. Clause 13 would ensure that someone who has complied with the terms of their leave would not be liable to prosecution under Section 24(1)(b)(i) of the Immigration Act 1971 as an overstayer. It was introduced in response to concerns that we were enforcing illegality on people by virtue of Clauses 1, 3 and 11. However, the amendments which have been tabled at this stage will provide for continuation of leave during any appeal against a variation, curtailment or revocation decision and, therefore, Clause 13 is no longer relevant.
	Amendment No. 15 provides an order-making power to limit the scope to certify clearly unfounded human rights claims under Section 94 of the 2002 Act. This would mean that where a type of leave was designated it would not be possible to use Section 94 powers in relation to variation appeals. We believe that it is important to take firm action against those who clearly make unfounded claims which is why the power to certify was extended, as noble Lords will remember from that legislation, to variation appeals in the 2004 Act. Introducing the order-making power does not change that position but we consider that the type of leave a person has before making a clearly unfounded claim may be relevant to whether they should be able to bring an in-country appeal. No decisions have yet been reached on what types of leave, if any, fall into this category but an order-making power ensures that we can seek Parliament's early approval if we decide that some types of leave should confer an in-country appeal right even where a person is making a clearly unfounded claim to extend his stay.
	Finally, Amendment No. 42 creates a new power to make a decision to remove someone from the United Kingdom. The intention behind the amendment is to allow the enforcement decision to be made at the same time as the decision to revoke, curtail or refuse to vary leave. When two such decisions are made before an appeal is lodged, the tribunal will, by virtue of Section 85(1) of the 2002 Act, be required to deal with matters in a single set of appeal proceedings. That will address the issue of variation and removal decisions, triggering the separate appeal.
	During the single appeal against both decisions, appellants will have continuing leave and may remain in the United Kingdom. I hope noble Lords will welcome this group of amendments. I beg to move.

Baroness Anelay of St Johns: My Lords, I welcome these amendments. They achieve the Government's original aim of a one-stop appeal process. They also meet the concerns we on these Benches expressed in Grand Committee that the appeal should be in-country and that the people's leave should be preserved on the same terms and conditions until that appeal is finally determined. We thus avoid the unacceptable result of the original drafting of Clause 1 whereby people would automatically have been turned into overstayers with all the damaging consequences that could have had. We also avoid the necessity for the artificiality of the Clause 13 situation that was introduced in another place as a rather last-ditch attempt to save the Clause 1 procedure.
	So, I am certainly grateful to the noble Baroness for the work she has done between Grand Committee and Report. The Government have fully met the commitments the noble Baroness gave in Grand Committee. On that more pleasant note, I am not sure whether others have had the opportunity to do so since last Wednesday, but perhaps I may congratulate her on being elected Peer of the Year by Channel 4 and the Hansard Society.

Lord Dholakia: My Lords, I too thank the Minister. She has obviously listened to the arguments we put forward at Second Reading and in Committee. I add my congratulations on her nomination and approval as Peer of the Year by Channel 4. I trust that that particularly generous award will be reflected by her approval of many amendments tabled by this side of the House.
	Like the noble Baroness, Lady Anelay, I think that the amendment meets the three main concerns we have set out. First, it meets the Minister's aim of a one-stop appeal; secondly—a point we had made again and again—it requires that there should be an in-country appeal; and, thirdly, it requires that people's leave is preserved on the same terms and conditions until the appeal is determined.
	I need to ask the Minister one simple question. Perhaps she could explain this. The need for a 10-day grace period for those who do not appeal is to preserve the status quo for the future if they were asked to leave the country. Will that remain in this Bill? Will the Minister also confirm that government amendments do not create any new powers over and above what is available in these amendments?

Lord Avebury: My Lords, I add my congratulations to those that have been expressed to the noble Baroness on her wonderful victory in the contest for Peer of the Year. All noble Lords who were present in Grand Committee will agree that that was extremely well deserved. I echo my noble friend's words in hoping that this afternoon will lead to further advances in her reputation, so that it will not be the last of these distinguished awards that she receives. I add to the welcome my noble friend expressed for these amendments and I welcome the couple of minor questions which he asked. I have one further little query. Can the Minister say what sort of groups would be protected from having their claims certified as clearly unfounded under the new clause to be inserted after Clause 13? I know that the Minister has already said that the Government will preserve the rights of children to an in-country appeal, but does she have any other groups in mind?

Baroness Sharp of Guildford: My Lords, I add my thanks to the Minister for the amendments. I spoke at Second Reading and in Committee about the position of university students seeking extensions of visas for one reason or another. The university community is extremely grateful to her for having listened to the pleas we made and is very grateful for her amendments.
	I too add my congratulations on her achievement of Peer of the Year. As the Minister knows, we sparred across many an education Bill, and I am very sorry that I shall not be sparring with her on the one that is coming up because she has proved to be—and I think that this is one reason why many of us voted for her on that occasion—one of those Ministers who listens; that is a very important quality.

Baroness Warwick of Undercliffe: My Lords, may I be forgiven for intervening in the debate, having only just rushed in, to join others in congratulating the Minister on the amendments which she tabled? They will be enormously appreciated in the university sector, in which I must declare an interest as chief executive of Universities UK. It therefore behoves me, as my noble friend's colleague, to congratulate her on the award of Peer of the Year to which others have referred. I am sure that we all share considerable joy in that announcement.

Baroness Ashton of Upholland: My Lords, I am unsure about whether to be grateful to the noble Baroness, Lady Anelay, for raising the award, yet I am extremely grateful for all of those kind words. I feel totally buttered up and ready for this afternoon, especially by the noble Lords, Lord Dholakia and Lord Avebury, who I believe were seeking to do that in order to force me subsequently to do things which I cannot. However, there may be the odd little trick up my sleeve for the rest of the day.
	The noble Lord, Lord Dholakia, asked about the 10-day grace period. Effectively, the answer is yes. People who are not detained have 10 working days from the date that they are notified of an appealable decision, if they are in the UK, in which to lodge an appeal. During that period their previous leave is continued; so, people currently have 10 days' leave without lodging an appeal. That will continue under these arrangements. The noble Lord also asked if there were any new powers in the amendments, other than the one which I mentioned. No, there are none.
	On clearly unfounded claims, we have no decisions yet. We want to think about that and have used that particular way so as to come back to Parliament and address the issue properly. The policy behind it recognises that some people, in some circumstances, should have an in-country right of appeal, even if they have quite clearly made an unfounded claim. We need to work through the details there. It may well be that children will be an example, as the noble Lord already indicated, but I am not yet in a position to say whether any groups have been determined. As soon as I am able to, I shall bring that to your Lordships' House.

Baroness Carnegy of Lour: My Lords, before the noble Baroness sits down, will that order be under negative or affirmative procedure?

Baroness Ashton of Upholland: My Lords, it is currently under negative procedure.

On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendments Nos. 2 and 3:
	Page 2, line 1, leave out "that Act" and insert "the Nationality, Immigration and Asylum Act 2002 (c. 41)"
	Page 2, line 11, leave out from "refugee" to end of line 12.
	On Question, amendments agreed to.
	Clause 3 [Grounds of appeal]:

Baroness Ashton of Upholland: moved Amendments Nos. 4 and 5:
	Page 2, line 20, leave out subsections (1) and (2).
	Page 2, line 32, leave out "subsection (3)" and insert "section 84(3) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (grounds of appeal)"
	On Question, amendments agreed to.
	Clause 4 [Entry clearance]:

Lord Avebury: moved Amendment No. 6:
	Page 3, line 9, at end insert ", or
	( ) entering for any other purpose prescribed by order for the purpose of this subsection"

Lord Avebury: My Lords, I hesitate to destroy the harmony which has been enjoyed on previous amendments and begin by expressing our gratitude to the Minister and her officials for the briefing which they gave us last week on the points system. The knowledge that the principle of having lists of approved employers and academic institutions whose offer of jobs or study would be treated as conclusive is a great improvement on the present situation, where subjective judgments on those matters are taken by the entry certificate officer. As we understand it, the ECO will not be able to refuse an application on the grounds that a person may not comply with the immigration conditions since his offer, if from an academic institution or employer, will be treated as satisfying that particular requirement.
	However, we still have concerns since we do not consider that the prevailing culture of disbelief among entry certificate officers will vanish overnight. There is still scope for discretion to be used against the applicant, particularly in assessing his ability to support himself without recourse to public funds. It was acknowledged in our discussion last week—which might have gone on much longer had it not been for the interruption, halfway through, of the Division Bell—that much of the detail still remained to be worked out, particularly on how numerical values would be assigned to attributes and how that would be calculated.
	The person is assigned points for the rating of the sponsor, availability of funds, previous compliance with Immigration Rules, and so on—according to the notes that I took at the time. It was accepted, for example, when we put it to officials, that a person who had never been in the United Kingdom before would be given zero points for compliance with the immigration laws, so he would need to score much higher in the other factors to reach whatever threshold of points is specified to be given entry clearance. An undesirable side-effect of that may be that someone with plenty of money who intends to study in a class B college could gain an unfair advantage by coming here for a brief visit before applying as a student and getting some points to offset the lower rating of the college at which he intends to study.
	We are also concerned because we must judge the Bill as it stands and have no opportunity to deal with the present system, which is so catastrophically unreliable, as everyone acknowledges. Dozens of recommendations for putting it right have been made by the independent monitor. They have lain on the table, ignored, from one report to the next and the Government have not yet published the final report of the independent monitor, more than two months after it was submitted. They arranged that there would be no monitor in post all the way through Second Reading and Grand Committee in your Lordships' House. How can we trust, not the Minister but the Government, who have failed so conspicuously to run the existing scheme fairly and effectively, to produce the new one to meet our needs, to be consistent, reliable and economical?
	We have seen only the headlines of the points-based system; the full scheme will be published long after the Bill has received Royal Assent. That is the political equivalent of the classic 18th-century scam of a stock market flotation of a company carrying on an undertaking of great advantage, but no one is to know what it is. Parliament should not be asked to sweep away appeal rights without even a roll-out, let alone the thorough testing of the processes that are said to make those rights unnecessary. We are now being asked to approve the points system for visitors and students on the basis of a seven-page PowerPoint presentation, plus whatever we managed to scribble down when the Minister and her officials were talking last week.
	We note that the consultation on the paper, Selective Admission: making migration work for Britain, finished on 7 November last. The Government are to publish the results shortly, but the moles from the IND tell us that that means as soon as the Bill gets Royal Assent—probably around Easter. I notice the Minister shaking her head and I should be grateful if she corrects me when she comes to reply. It is less than encouraging that the Government are so keen on preventing us seeing the full details of the points scheme while there is some possibility of doing something about it during the Bill's remaining stages. That is why we tabled Amendments Nos. 76 and 77, which would defer the coming into operation of Clause 4 until sometime after 2010, by which time I hope that we would have had an opportunity to make a full evaluation of the points scheme—even, in the interim, putting right some of the many things that the monitor has recommended that we do about the existing unfair and chaotic asylum entry system.
	The idea of sponsorship by an approved academic institution or employer and the elimination of entry certificate officers' discretion to challenge acceptance of a student or worker could be implemented by a change of the Immigration Rules. That would eliminate a large number of the refusals that are overturned on appeal, especially those of students as described by the monitor, who said in her report of February 2005:
	"The overwhelming majority of refusals are made for reasons which address the requirements of the Immigration Rules that visitors and students (who are not studying at degree level) . . . should not intend to work and that students should intend to follow their course".
	Why have the Government not addressed that problem by amending the Immigration Rules so that the number of refusals—hence the number of appeals—in respect of bona fide colleges could be reduced accordingly? They might then be able to save a great deal of money, not only on the appeals themselves, but by continuing the part-time appointment of Ms Lindsley, who is doing a great job, rather than replacing her with three full-time workers, as I understand they are doing. As I have already said, Ms Lindsley came to the end of her term of office on 1 December. Presumably she submitted the final report before then. Why has that report not yet been published?
	Before I sit down, I should briefly refer to our Amendment No. 6, which allows the Secretary of State to prescribe purposes for which the rights would be restored. It does not require the Secretary of State to do anything unless he thinks that necessary in the future. We still believe that chickens might come home to roost when a totally unexpected but perfectly reasonable case is made for some group to have its rights of appeal restored. If not, nothing is lost by having the provision in the Bill. I beg to move.

Baroness Anelay of St Johns: My Lords, I speak to Amendment No. 9, which is in my name and grouped with these amendments.
	The Government's plan to abolish appeals in non-family cases was in the general election manifesto. It did not exactly shout out that students would have their appeal rights removed. I suspect that the implication of the text of the manifesto was not crystal clear to the public, but I accept that the provisions in this Bill accurately apply the commitment in the manifesto. As such, therefore, I have from the beginning acknowledged that the Salisbury convention means that I should not, and I would not, do anything to undermine the operation of Clause 4.
	Debates in Grand Committee showed that there was opposition on all sides of the House to the Government's plans to abolish appeals for those who apply out-of-country for visas to come here to work and study. I expressed my concern both on Second Reading and in Grand Committee about that abolition of a right of appeal and its replacement by a system of administrative review. In Grand Committee, the Minister offered to take time to explain to noble Lords how the Government expected the new administrative review procedures to work and, in particular, how they would try to remove subjectivity from the decision-making process of the entry clearance officer. I believe that the Minister has met that commitment with good will and energy.
	I am grateful to the Minister for arranging to meet my honourable friend Damien Green and me last week, so that IND officials could make a presentation on how they hope the new points system may work. The noble Lord, Lord Avebury, has just referred to that PowerPoint presentation. I was impressed by their optimism and determination to establish a system that is both fair and accessible and one that should try to remove from the equation that subjectivity in decision-making. I do not question their professionalism and dedication—far from it—but there are significant questions that remain to be answered.
	What is the timetable for the roll-out of the application of the various tiers of the points system? What is the number of staff that will be involved in the retraining of entry clearance officers and when will that training be completed? Will staff be trained on a country-by-country basis or on the basis of point of application? What are the plans for monitoring the quality of the initial decisions? If somebody objects to the results of that initial review and requests a review, how long might they have to wait for the outcome? What information will be given to them as to the reason for upholding or overturning the original decision? How will the Government raise awareness of the new system among small employers, who will not have access to the advice systems that may be put in place by affected/effective organisations such as UUK? Here I add my appreciation to UUK for all the hard work that it has done in briefing noble Lords on all the issues throughout the Bill process so far.
	How will a proxy accreditation scheme for small business work? The Government say that there will be a carrot-and-stick approach to the points rating of employers. How will they determine the initial rating of employers? What information will be used and how reliable will it be? How will the new system deal with complex cases and high-risk areas such as poor track records or new sponsors? Those questions could go on for ever—it is tempting to do so—but I think that I have put there more than my baker's dozen which I had originally intended.
	I realise that the results of the consultation will be published soon, as the noble Lord, Lord Avebury, said; one hopes it will be within the next month. It is vital that this House should consider the results of that consultation before Third Reading. It would therefore be helpful if the Minister could say whether she agrees that it would be best if the House had that opportunity.
	I have reflected carefully on the work carried out by the Government on the new system of administrative review. It is important for everyone that it should work well. It is also important for Parliament to have the guarantee that it will have the opportunity to hold the Government to account for the operation of the administrative review system. It is in that spirit that I have tabled Amendment No. 9, which I hope will be seen as a constructive move forward. The amendment requires the Secretary of State to lay a report before Parliament within three years of Clause 4 being put into effect, a report that would have to set out the details of what system of administrative review has been set up and how effective it is, taking into account the number of cases and the number of applications for further review after the initial decision. As ever, I am not wedded to the drafting of that amendment, but it is offered in a constructive spirit.

Baroness Warwick of Undercliffe: My Lords, in speaking to Amendment No. 10 in this group, I declare an interest as chief executive of Universities UK. I cannot hide my disappointment that the Government have not proved willing on this occasion to listen to our concerns about Clause 4, which will abolish the right of appeal in entry clearance cases. No substantial improvement has been made so far to this aspect of the Bill. As the noble Baroness, Lady Anelay, said, there is a manifesto commitment in play which of course ties the hands of this House. But it does not remove the possibility of making real improvements to the Bill.
	As we know, the quality of initial decision-making is poor. With respect to students, about 34 per cent of applications are initially refused. Of those who appeal, one in four is successful. In plain English, entry clearance officers get decisions wrong with alarming frequency. The Government have argued that the new points-based immigration system will solve the problem. It appears, however, that Ministers are confident that this will happen overnight because it is clear that the Government intend to remove the right of appeal as soon as the points-based system is in place.
	The noble Lord, Lord Dholakia, has tabled Amendments Nos. 76 and 77 in this group, which would create an opportunity for the system to be tested before appeals are abolished. I wholeheartedly support that approach. Under the current scheme, there will be no opportunity to test the Government's assertion that the new points-based system will work and will improve the quality of decision-making. Although we all hope that that will be the case, there are reasons to doubt that it will, which I have set out in a detailed letter to the Minister this week.
	As the noble Lord, Lord Dholakia, said, the details of the scheme are yet to be published. I hope that we will see it before Third Reading. But from what we know, it is clear that there will remain an element of subjectivity in the process. As Tony McNulty, the Minister, has said in another place,
	"100 per cent objectivity is a fool's errand . . . It is not about simply ticking boxes and adding points up, although that is a large part of the measure. We do not know how points will be allocated and what weighting will be given to different criteria".—[Official Report, Commons Standing Committee E, 20/10/05; col. 116.]
	There remains the fact that errors frequently occur under the current system, as a result of entry clearance officers failing to follow the existing rules. How can the Minister be confident that that will not happen under the new system? I hope that better training and resources will improve things, but I remain unconvinced that the new points-based system will be a magic-wand solution. If the Government are wrong and errors still occur, or it simply takes some time to get the system working well and train the people who are to operate it, those who lose out will have no opportunity for independent redress.
	That is particularly disappointing because the Minister's own department, the Department for Constitutional Affairs, has made it clear that the Government are committed to providing independent adjudication where decisions taken by government officials affect people's lives. The July 2004 DCA White Paper, Transforming Public Services: Complaints, Redress and Tribunals, stated:
	"in a democracy ruled by law, and under a government committed to high quality and responsive public services, simply appealing to a department's sense of fairness is not, and never has been, enough".
	I hope my noble friend at the Dispatch Box will make it clear on the record that she agrees with the statement; I do. If she does agree, can she explain how it is consistent with the Government's intentions on entry clearance?
	There is still time for the Government to achieve consistency between that statement and the entry clearance system. Amendment No. 10 would create an opportunity to do just that. It provides for the Government to appoint a person or body independent of the decision maker with power to review decisions in individual cases. Given the DCA's commitment to independent adjudication, I have suggested that this scheme should have the endorsement of the Lord Chancellor. I have not sought to bind the Government's hands on who should take responsibility for such an independent review and, no doubt, the Government can improve on the drafting. But in the five-year plan the Government have already committed themselves to producing a scheme for administrative review. All I ask is for that system to be given a statutory basis, for the principles to be set out in secondary legislation, and for it to include some element of final independent arbitration.
	I know that my noble friend has been thinking about the scheme and I am most grateful for our conversations about it. But I would appreciate it if she could confirm several points: that administrative review will be available to all those refused visas; that entry clearance officers will provide written reasons for refusing visas and invite applicants and their sponsors to make representations; that the review should allow for the clarification of existing evidence; that responsibility for conducting the review will rest with the regional tier of entry clearance staff; and, finally, that the independent monitor will sample review cases and monitor procedure in relation to students. The reason I ask for these specific commitments is that so far we do not have any concrete proposals for the review, which was promised as part of the five-year plan and we know that the administrative review process that exists under the current system does not deliver results.
	I believe the record will show that this House is well aware of the problems with the scheme the Government have set out. The Minister still has an opportunity to listen to those arguments and to make appropriate changes. At this point I should like to thank the noble Baroness, Lady Anelay, and the noble Lords, Lord Dholakia and Lord Avebury, for their determination, tenacity and continuing support for this approach. The Minister has a reputation in this House for listening and delivering real improvements to legislation. In speaking to Clause 1, all those who intervened complimented her on the fact that she was so willing to listen. Notwithstanding all of the constraints this House is under in view of the manifesto commitment, I hope she will take the opportunity now before us and bring back some concrete proposals before Third Reading.

Baroness Carnegy of Lour: My Lords, I am not sure whether the amendments tabled by the noble Lord, Lord Dholakia, to postpone this clause until January 2010 fall within the Salisbury convention. I do not know whether the Minister has it in her brief to remark on it. But obviously we must pay attention to the convention which, although questions are asked about it, still exists.
	This is a very important subject. The effect of Clause 4 as it stands will be fairly devastating for universities and for the country because it is clear that a great many students would not have come here had they not won an appeal. Some now play a notable part in our economy. Some of them have stayed and are now working here. Some plan to come back. They have all got to know this country and may come back in the future. We have been over all these arguments, and the Minister knows well the importance of the subject.
	The noble Baroness, Lady Warwick, has put down Amendment No. 10, and is suggesting there should be an independent person to adjudicate on cases. I do not know how many cases there would be, what size this operation would be, or whether it is possible. Doubtless the Minister will tell us about that. It is certainly worth considering.
	My noble friend Lady Anelay has spoken to Amendment No. 9. Although it would do less to help, it would improve the situation, because there would be a chance for Parliament to know within three years just what has been going on. Three years can be quite a short time with something like this. It would be very helpful if there could be a report to Parliament to tell us what has happened, how many people have applied, how many have had their applications refused and so on. I hope the Minister will consider that carefully. If I were in the Government I would like to accept that amendment, as it is a sensible and workable solution. It does not solve the whole problem, though, and we will be interested to hear the response to the amendments of the noble Lord, Lord Dholakia, and those of the noble Baroness, Lady Warwick.

Baroness Sharp of Guildford: My Lords, I add my support to the amendments in the grouping. On Second Reading and in Committee we spoke at length about the difficulties this would pose for students applying for entry to the UK. The points system, which we understand, will undoubtedly clarify the situation. On the other hand, as both my noble friend Lord Avebury and the noble Baronesses, Lady Anelay and Lady Warwick, have indicated, many questions remain to be answered about the workings of the points system. Ideally, therefore, we need a pilot period during which we can see how it works out. That is the purport of Amendments Nos. 76 and 77, standing in the names of my noble friends Lord Dholakia and Lord Avebury. That is what we would like to see, but, if that is impossible, falling back on a review mechanism is very important.
	I pick up the point made by the noble Baroness, Lady Warwick: natural justice demands that there is some sort of independent review. She has indicated the importance the Minister's own department put upon the concept of some sort of independent tribunal, where tribunals exist. I support Amendment No. 10 standing in the names of the noble Baroness, Lady Warwick, and my noble friend Lord Dholakia. It would be excellent if we could introduce an independent review of decisions that have been made.

Lord Brooke of Sutton Mandeville: My Lords, I declare an interest as pro-chancellor of the University of London, though I am not speaking in any sense on its behalf. I was unfortunately unable to attend the briefing given by Universities UK yesterday afternoon, by virtue of a separate association with the National Lottery Bill, but I listened with care to what the noble Baroness, Lady Warwick, said this afternoon.
	I recognise the impact of the Salisbury convention alluded to by my noble friend on the Front Bench, and indeed by my noble friend Lady Carnegy. One of the ironies of the Salisbury convention in this context is that it was introduced by the third Marquess of Salisbury and renewed by the fifth only after the Second World War. When the third Marquess of Salisbury introduced it, it was during a period when a great deal more of the world was painted red than is the case today.
	I shall of course give the benefit of the doubt to the Minister, who enjoys great respect in the House, as has already been alluded to, but I shall maintain unease until I hear her reply. I hope that I shall feel less unease after she has spoken.

Lord Dholakia: My Lords, we had a useful discussion on Amendment No. 10 at Second Reading and in Committee. I do not intend to repeat those arguments, but we should listen carefully to the case that was made by the noble Baroness, Lady Warwick, and my noble friend Lady Sharp, among others.
	I thank the Minister for arranging a series of meetings with her staff, and I ask her to thank her Bill team for the information that they have given to us. It has made the Government's stance on this clause fairly clear. The points-based system has some merit as against what was available until now. There is no dispute about that. I have always believed that an objective system is a much better way of proceeding than subjective decisions by entry clearance officers.
	However, we need safeguards even within an objective system of this type. Perhaps I may make an appeal to the noble Baroness, Lady Anelay, and the Conservative Party. Amendment No. 10 is not a wrecking amendment and I would not support any decision at this stage to divide the House on it. The reasons are very clear. We want to see how we can improve the provision. There are three areas at which we must look. The first is independent adjudication. We will continue to press for an appeal procedure to be retained, and we will consider anything that delivers a layer of independent adjudication. Secondly, while we would certainly welcome an administrative review, which would reduce reliance on the appeal mechanism, even a review of that nature requires an element independent of the Government to identify the issues that have been highlighted in this discussion. The third and most important area—the noble Baroness, Lady Warwick, mentioned it—is the overlap between the introduction of a points-based system and the evolution of appeals.
	I said that it would be right and proper for further discussions to take place before Third Reading about the points-based system. That would be the right time to analyse the system in conjunction with our request of the Minister to take back our concern and to look at whether the system could be improved. I hope that the Opposition would support that, even if it meant a matter of this nature being sent back to the Commons for them to look again at the case that has been made. However, we have no intention ultimately to wreck the provision or that part of the Labour Party's manifesto commitment. I hope that the Minister will give sympathetic consideration to what has been said so far.

The Countess of Mar: My Lords, I listened with great interest to the speech of the noble Lord, Lord Dholakia—I declare an interest as a member of the immigration appeal tribunal—and to the speech of the noble Baroness, Lady Warwick. They both illustrated a system which is in existence now. Since the 2005 Act, the appeal system has existed. "If it's not broke, don't fix it", you might say, but the trouble is we don't know whether it is broke or not because it has not yet had time to work. We cannot tell that. Perhaps we should keep our thoughts trained in that direction. I am not seeking to sustain my employment, as the noble Baroness will know, but there is no point in inventing a new system if the system is already there.

Lord Lewis of Newnham: My Lords, I declare an interest as chairman of the Cambridge Commonwealth Trust and Cambridge Overseas Trust. We have been responsible for bringing in about 800 to 1,000 students per year for approximately the past 10 to 15 years. One of the features that has been very apparent is the complexity of trying to make decisions before you have seen the students. I speak in support of these amendments because I genuinely believe that until the measure is in operation we shall not find out what some of the real problems are. I say that respectfully to the Minister and her department. When dealing with specific cases complexities very often arise which were not thought of beforehand. The noble Baroness, Lady Anelay, suggested that the system should be reviewed after a short period. I consider that the suggestion of the noble Baroness, Lady Warwick, constitutes basic justice—that someone is seen to be looking at this problem from the outside.
	I say that with considerable sensitivity because one of the things that has become very clear, and has been spoken of on previous occasions, is how much the world at large is looking at this problem. I cannot over-emphasise how much students at large are sensitive to the protocols that apply when coming to a given country. We have a good reputation which I would like to maintain. These amendments would help in that regard.

Baroness Ashton of Upholland: My Lords, I am grateful to all noble Lords who have participated in the debate. I begin where the noble Lord, Lord Lewis of Newnham, ended. I would like to enhance our reputation. The point that was made by my noble friend Lady Warwick on the number of decisions that are overturned on appeal is the reason and the driving force for the new system that is being proposed, which is a much better proposition. My role, notwithstanding any conventions, is to try to convince your Lordships' House during the passage of the Bill that we have that right.
	One of the ways I want to do that is to make a promise. The promise is specifically directed at the noble Lord, Lord Avebury, but I believe that it will be welcomed by your Lordships' House. I have discussed it very briefly with the noble Baroness, Lady Anelay, and I know that she will welcome it. As noble Lords have indicated—I think that the noble Lord, Lord Avebury, used the word "shortly"—the response to the consultation will be published. I give the commitment that Third Reading of the Bill will not take place until that is published and noble Lords have had at least a few days to consider it. I do not have a publication date yet; my pay grade is not sufficient to be given such an honour, but as soon as I have one I shall make sure that noble Lords know it. If for some reason the publication were delayed, we would move the Third Reading date accordingly. The purpose of that is to achieve precisely what noble Lords want, which is to look at the consultation and to have the opportunity to meet myself, my honourable friend Mr McNulty and officials. I was grateful for the thanks that noble Lords have given for the meetings that officials have held with them over the past couple of weeks.
	One should also understand that the stakeholders involved in this—I refer not only to universities but also to other education institutions and employers, large and small—played a critical part in designing the new system. They will have a continuing role to play in making sure that we get it right. Noble Lords rightly mentioned the difficulties that arise with the current system. I am sure that there are wonderful entry clearance officers and entry clearance managers and I know that noble Lords do not mean to imply that they are not, but I accept that mistakes are made and that judgments are arrived at. Largely because of the judgmental nature of the way in which decisions are made it has been important to have an appeals process. That has proved itself through the number of successful appeals. But that is not the system that we will be dealing with. The system will be specifically designed with all those factors taken out.
	One issue that has been raised continuously with me by representatives of Universities UK—I am always sorry to disappoint my noble friend Lady Warwick, despite my efforts to meet her concerns—members of the Chinese community and others, has been considering the subjectivity of intention to study. That will not be in the new system, because the people who will decide that someone is going to come and study in this country will be the institutions. They will determine by giving someone a place that they are qualified and able to study and that they meet the requirements, just as they do with students here.
	The other issue that I am often told about is that people supply many pieces of information, largely to give financial security to entry clearance officers in the sense of giving them all sorts of information that they might need. Without pre-empting what will happen, we hope that the system will streamline that process totally, so there is transparency regarding what information is needed for the individual who is seeking to apply either to come to this country as a student or who has a job offer and is coming in as a worker, so that they know what they need to supply in the points-based system and they understand the importance of supplying it.
	I apologise if the seven-page PowerPoint presentation did not do it for the noble Lord, Lord Avebury, but I have sought to get people—whether Members of your Lordships' House or people outside—to understand that we have to forget the existing system and all that we loved or hated about it and think about a transparent system at which any applicant can look and work out how many points they will need and how they will gain them and that the same system is being looked at by an entry clearance officer at the point at which the applicant is seeking to have the application ratified and to come into the country.
	That transparent system will do a number of things. It will prevent people speculatively trying to come into the UK, which will have an impact, because it will show people what they will need. It will enable the institutions and employers to play a far greater role. We are talking about how to make sure they have a positive relationship and we are discussing with Universities UK what role the institutions might play in querying if there is an issue. It will enable people to see at a glance precisely what information is required, so we do not get the bundles of paper that lead to the issues and problems that have been raised.
	When I talk to the officials at the Home Office—noble Lords must remember that I am not a Home Office Minister, which is sometimes an advantage in this process, because I am not part of it and can therefore ask more difficult questions—I am clear that here is a system that sounds infinitely better for everyone; not least our hard-pressed entry clearance officers in terms of being able to understand and see what will happen. It is in that context that we began to think about what kind of mistakes or issues we would need to take forward. It is not an appeal against someone's judgment; it is looking at what might be the issues and problems.
	I invited all noble Lords who took part in our deliberations in Committee or whom I have met outside and the universities and other institutions to come forward with examples of decisions that have gone wrong, which might be decisions that could not be addressed by what I have described as the administrative review. I am still waiting to find one that either would happen or could not be dealt with.
	When we looked at what we need to do to make sure that things do not go wrong, my concern was that there was still of course the possibility of human error. Even with a system that has taken out huge amounts of judgment—I will talk about the final judgment in a moment—we still have the potential for someone to misread a piece of information; to write down the wrong number for the points, and so on. What could we do that would create a better system than the one we have currently but would recognise that that could happen?
	Noble Lords who have dealt with appeals will know that they can sometimes take up to two years. I want a system that means that a student, for example, is not prevented from coming to their course because someone read a number wrong. We need to design an administrative review system that has a number of elements: first, that it is free, which it will be; and secondly, that it is speedy, which it must be. We have asked universities and employers what is an appropriate length of time—I am talking days and weeks; certainly not months—to make sure that we can handle an assumption that everyone who is refused will call for a review. Therefore the time period has to be manageable within the system but the system must make sure that no one misses out on either a job offer or a university or college place because it has taken too long. How do we make sure that that is done in such a way that people have transparency?
	Any decision that is made that says that an applicant will not be entitled to come must give within it—the noble Baroness, Lady Anelay, asked about this point in her opening remarks—the specific reason why the applicant has been turned down. That enables the applicant, or the institution if it plays a role, to say, "Hang on a minute, you have read that wrongly", or, "You have misinterpreted that information". The review is done of a very specific, relevant piece of information or of a fact that can be looked at.

Lord Avebury: My Lords, does that mean that during the process of monitoring by the independent monitor the applicant will be able to submit written evidence to show where the decision is faulty and to contest any incorrect statement that has been included in the decision? The applicant will not be able to give oral evidence, will he? It will simply be a matter of making written representations to the monitor.

Baroness Ashton of Upholland: No, my Lords, the independent monitor does not play a role in this. The independent monitor is much further up the system. He will be in a full-time position, looking across a sample of cases. We talked about this a lot in Committee. He will perhaps look at particular countries where there have been particular issues. I am describing a process— which we still have to work out and which is not set in concrete—where someone more senior in the area looks at whether someone has misread bank account details or miswritten the number of points. We are talking about a very clear administrative system. The individual can reapply; there is nothing to stop anyone reapplying.
	That is the kind of process that we seek to put in place to address precisely the questions that will be raised, bearing in mind that the subjectivity has largely been taken out. The one area where we still have to have a discussion—and I am grateful to my noble friend, because she mentioned this area in her letter this week—is where you believe that the documentation before you may be forged, or something of that nature, in which case one might say that professional judgment has a part to play. That is what my honourable friend Mr McNulty referred to when he said that you can never 100 per cent rule things out, because you have to consider whether the information before you is forged or accurate. We have to think about that. We are talking about an administrative review, not an independent anything. It is not an appeal by the back door. I will not pretend to your Lordships that that is what I am looking for. I am looking for a system that will provide a greater and better impetus for people to come to this country as students or workers; I am looking for a system that is much more transparent and makes it much easier for people to understand what they have to provide to do so. The system should give them greater opportunities to participate in education or in work in this country; that is the ambition behind it.
	I will now address the specific points that noble Lords have raised. The noble Baroness, Lady Anelay, gave me a series of questions. Some of them will be answered when the documentation is available, but I will seek to deal with those questions as best I can. We have a five-year strategy to roll this out in a phased way, so I do not have a specific timetable at this point of how it will come in. The idea is to phase in the different tiers over time. The noble Baroness is absolutely right that we need to think about the number of staff that we need for training. Part of the design is how we make sure that we have got the right kind of training in place; we absolutely do not underestimate the importance of that. Whether we take a country-by-country approach will be part of looking at what will work best. We will use a phased approach, but we need to think about how to do that—whether it should be country by country, or all of one tier.
	On the quality of initial decisions, I hope that I have given a flavour of looking for transparency and objective criteria so that people can understand the process effectively. We are looking at the details now so that we can make sure that people get the information in a clear, objective and transparent way—for example, if they are refused. The noble Baroness, Lady Anelay, raised the issue of small employers, on which we are consulting. Not surprisingly, members of the Chinese community have raised it with us, because they represent a large number of small employers. We are looking carefully at how to ensure that we involve them appropriately and how we make contact and keep contact with them. That is much easier with big employers who have a number of people coming through and where we will be able to develop personal contacts for them. We need to make sure that we have got that right. That also applies to an accreditation system for small businesses.
	We want to ensure sure that the basic procedure is in place so that we can obtain the initial ratings. We will aim to have more compliance checks while people get their ratings right. There might be a provisional rating that will then come into force as we have more compliance checks. I am not seeking to prevent people participating or to discourage or discriminate against them because they do not have a long track record. The use of compliance checks is to help them.
	I can tell my noble friend Lady Warwick that the administrative review is available to anyone who is refused. Written reasons will be given, as I have indicated. There is no regional tier involved. Such regions are huge areas of the world, but my noble friend and I can continue to talk about this. I have indicated that the independent monitor will carry out a sampling exercise.
	I have talked at some length about the administrative review and, sneakily, I thought that my noble friend would start quoting my department at me. I have the quotation, too. The noble Baroness quoted section 3.13. Section 3.12 states:
	"The first and most direct remedy is to dispute decisions directly with departments and agencies".
	So I stand by what we said in 3.13. The noble Baroness will know that I am responsible for tribunals within my own areas of policy. We are saying that we need to make sure that people dispute with departments and agencies. We are doing that and the administrative review enables it to happen. There are still rights of appeal on human rights and race relations grounds; there is a route to judicial review; there is a level of independent scrutiny by the independent monitor; and the noble Baroness may wish to note that the document states on page 15:
	"Both the public and private sectors need to create and maintain suitable and cost effective means of redress".
	Noble Lords will remember from Second Reading that we are seeking to achieve a better use of resources across all our work on asylum, immigration and managed migration. It is important that we achieve that.
	Turning briefly to the amendments that have been spoken to, I do not think that the noble Lord, Lord Dholakia, will be surprised that I do not accept Amendment No. 6. However, I am interested in Amendment No. 9, which I hope will please the noble Baroness, Lady Carnegy of Lour. She wanted me to accept that amendment here and now. My difficulty is that there is a technical problem with the drafting, as I have already explained to the noble Baroness, Lady Anelay, who accepted that explanation. The amendment is worthy of consideration for the exact reasons that noble Lords have stated. I am happy to take it away for further consideration and return to it at Third Reading.
	My noble friend Lady Warwick and the noble Lord, Lord Dholakia, know that I shall resist Amendment No. 10 regarding creating a review of the kind that it describes. I understand why noble Lords want to put matters on the face of legislation—it is a guarantee of what the Government are seeking to do—but there is no reason to fear the introduction of our administrative review system. It is important that we introduce the system and we are committed to it, but making that process statutory on the face of legislation would bring with it all the difficulties of creating rigidity in a system that needs to be flexible. It is also an administrative review, which would not sit well with being statutory. However, we are committed to doing it and will work closely on it with my noble friend and others.
	I shall not accept the idea that Clause 4(1) cannot come into force until at least January 2010, because this is a better system for future students and employees; when we are ready to introduce it, we should do it properly. I do not want to be captured by legislation that sets out a date that may be inappropriate for many reasons, although I understand why noble Lords want to set a date.
	Regarding Amendment No. 77, I bow always to the Delegated Powers and Regulatory Reform Committee. I have not yet failed, nor do I plan ever to fail, to accept what it says. So when it does not say something, I take that to mean that noble Lords on that committee are reasonably content with what we have done. They made no comment on the procedure in Clause 59 and, therefore, I do not propose to accept that amendment.
	I hope that the explanations and the commitments that I have given about Third Reading may offer some cheer to noble Lords and perhaps some greater understanding of why we are proposing a new system with a new process rather than thinking about the old system and the concerns that quite rightly noble Lords have had. On that basis, I hope that at this stage the noble Lord will feel able to withdraw the amendment.

Lord Avebury: My Lords, again the noble Baroness has said, as she did constantly in Grand Committee, that we have to forget about the existing system. The same people are going to operate the new system, which is what makes us anxious. The same entry certificate officers, who, as the noble Baroness, Lady Warwick, has pointed out, had 25 per cent of their decisions overturned on appeal, will be dealing with the new system. Even though one tries to be as objective as possible, they will still have to exercise an element of judgment, which will be subject to only an internal administrative review, about which the noble Baroness has been able to tell us very little.
	The issue is not simply whether the documents are forged or not, which is a matter of fact that can be determined by reference to the original institution. However, if the idea, which is so meritorious and which we all accept, of having the sponsorship of an academic institution or an employer removes the element of intention from the decision by the ECO, why have we not introduced it already in the Immigration Rules? I ask the noble Baroness that question and I wonder whether there is an answer to it, or whether we should have embarked on this in a series of steps that would have enabled us to judge whether they were effective. The system whereby academic institutions are on the register is already in place. They are recognised as being responsible for judging the applications of students, so the ECO does not have to go behind those, except to say whether the course is appropriate or whether the institution meets the particular needs, as in the case of the famous student who wanted to study English in Northern Ireland.
	We would not have any of those nonsenses if we had already instituted the system of established sponsorship by an academic institution or by an employer and if we had been able to treat that as conclusive in removing the element of judgment by the ECO on whether something was going to comply with the immigration rules. One could have done that in the existing immigration rules and we would not have had to abandon the rights of appeal because, by definition, there would have been a much smaller number of appeals against decisions which are now made on the basis of someone's assessment of intentions.
	As the noble Baroness said—this has been echoed by every noble Lord who has spoken—we do not know enough about the system to evaluate it. I am most grateful to the Minister for saying that at least we will have the report of the consultation on a points system before Third Reading. I honestly believe that we would have a much more fruitful and productive discussion if we had that document before us. As I am about to withdraw the amendment, I look forward to a further discussion at Third Reading and I hope that on that occasion we will be able to make progress. We shall know more clearly what is intended and many of the blanks that we face at the moment will be filled in. We will know how the points system has been evaluated by those who have been consulted on it and we will perhaps know more about the administrative review, about which the Minister has been able to say very little, but which clearly, in the minds of the academic community, and particularly in the mind of the noble Baroness, Lady Warwick, is of vital importance.
	We will not get over the subjective decisions when, to quote the noble Baroness's department's document, Tribunals for Diverse Users,
	"Its key features need to be independence, professionalism, accessibility and efficiency".
	Perhaps the noble Baroness could say—I would be delighted if she interrupted me to do so—whether this document applies to the administrative review that we are talking about. She was referring, as I understood her, to the White Paper, Transforming Public Services: Complaints, Redress and Tribunals, so I rather inferred from that that the comments made in this document applied pari passu to the administrative review to be introduced under this Bill. That would be very important, because we would at least have an independent yardstick by which to judge the process when it is finally introduced. If the noble Baroness does not want to interrupt me, perhaps we can come back to that point on Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury: moved Amendment No. 7:
	Page 3, line 9, at end insert ", or
	( ) entering for settlement as a returning resident in accordance with the provisions of the immigration rules, including cases where the person may be admitted as a returning resident under those rules despite the length of their absence from the United Kingdom"

Lord Avebury: My Lords, Amendment No. 7 deals with returning residents. The matter was raised in Grand Committee on 9 January. In the example I gave then, an elderly couple who were out of the country for more than two years, for perfectly understandable reasons, would have had no right of appeal on grounds of human rights or racial discrimination—the only ones that will remain under these proposals. The Minister did not say at the time whether she thought it would have been satisfactory or fair for that particular couple, who became involved in legal proceedings when they went back to their country of origin to find out how their son had been killed, to have been exiled permanently from their home on top of everything else that they had suffered.
	Amendment No. 8 deals with the position of non-EEA nationals who apply to come here under European Community association agreements. In Grand Committee the Minister recognised that they should have a right of appeal under a recent European Court of Justice judgment, but said that the reinstatement of those rights, which were removed under the Bill, would be accomplished through secondary legislation. I wonder if the Minister could point to the order-making powers that allow this to be done. Clause 4 is concerned only with visitors and students and I see nothing that would allow the Minister to do this under the parent Section 82 of the NIA Act 2002.
	The Minister said that she did not accept that the settled community law, which applies to the other categories I mentioned—that is, nationals of Switzerland and primary carers of children who themselves have a right of residence—meant that they would forfeit their right of appeal against refusal of entry clearance. Nor did the Minister consider that there should be any general power in the Bill to restore rights of appeal to any other classes of person to whom Community law extends the right of appeal in the future. That also, the Minister said, could be dealt with in secondary legislation. Again, I would be obliged if the Minister could tell us where the order-making power to do that might be found. Assuming the power exists, if exercised it gives rights of appeal to specific EEA nationals in specific circumstances, so an EEA national alleging a breach of some other EEA treaty right, which had not been tested or litigated before, would be unable to appeal. Our approach solves that problem and ensures compliance with Community law.
	I am sure the House would agree that where it is possible to leave rights that already exist in primary legislation, it would be quite improper and unwise for the House to remove those rights in primary legislation and then restore them in secondary legislation. What is the point of doing that? I beg to move.

Baroness Ashton of Upholland: My Lords, as the noble Lord, Lord Avebury, says, we dealt with this issue to a degree in Grand Committee. Taking Amendment No. 7 first, the noble Lord will know that refusal of entry clearance for returning residents is on the basis of objective criteria. I hear what the noble Lord says about the particular case he raised. It is right that if someone has been outside the UK for more than two years, that is a factor to be taken into account. We allow returning residents to retain a limited right of appeal on human rights and racial discrimination grounds. Any argument that would be put forward, for example, under Article 8—the right to respect for family and private life—could still be raised under Clause 4 of this Bill. That does not get taken away. As the noble Lord acknowledged in Committee, many residents who have indefinite leave also have the opportunity to apply for citizenship.
	As the noble Lord, Lord Avebury, has raised the matter again, I have looked at it very carefully. However, I remain of the view that there is already an objective set of criteria that allows for the kind of appeals which would deal with his concerns. He will be disappointed by the reply, but that is the Government's position.
	On Amendment No. 8, the Immigration (European Economic Area) Regulations 2000 (as amended) give the issue the ability to be addressed. It is not that we are replacing secondary and primary legislation; it is done through that set of regulations. They are the appropriate place for the appeal rights to be defined. The amendment does not deal with the persons claiming rights under the ECAA arrangements, but we will ensure that we reinstate all the relevant rights that are to be removed under the Bill, using those 2000 regulations, as I have indicated. I reiterate that we do not accept that there is settled Community law which generally requires other classes of applicant to receive an appeal against a decision to refuse entry clearance. However, we have also made it clear that if Community law develops and the right of appeal is extended, of course we will give effect to that within the regulations.
	There is therefore no intent to do anything other than restore what the noble Lord primarily seeks, but to do it in the right place, which is where it is now in those regulations. I hope that that will reassure him.

Lord Avebury: My Lords, I still fail to understand why the noble Baroness, knowing that there are exceptions under the returning residents scheme, is unwilling to grant those people rights of appeal. She still did not say whether the example I gave in Committee, and repeated today, was one where the individuals concerned should be denied rights, or whether they were so denied because the Bill was not in force. There will always be a small number of people who for good reasons are not able to comply with the conditions for returning residents, and in particular will have been away from this country for more than two years generally in circumstances of great family tragedy; for example, the couple whose son was killed.
	I therefore argue that it is inhuman to deprive people who have already suffered intensely as a result of, say, a family bereavement and say, "You have forfeited your right of appeal through no fault of your own". I simply cannot understand why the noble Baroness is so resistant to that amendment.
	I accept it is possible to do as she says under the regulations she quoted, but I still cannot understand why, when there is the opportunity to make provision in primary legislation to retain people's rights, we should take away the rights in the Bill and then restore them by secondary legislation. But obviously we are not going to win this argument so, for the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 8 to 10 not moved.]
	Clause 7 [Deportation]:

Lord Dholakia: moved Amendment No. 11:
	Leave out Clause 7.

Lord Dholakia: My Lords, the purpose of the amendment is to maintain the status quo in national security appeals whereby both risk of breach of human rights on return and the national security case are heard before the applicant leaves the UK.
	The Immigration Law Practitioners' Association has done a good deal of work and I am grateful for the information and briefing it has supplied to us. These proposals for a variety of measures relating to terrorism were published over the summer months. Many are now part of the Terrorism Bill. On 15 September, the Home Secretary set out draft clauses that would be introduced into this Bill.
	It is right that we respond to public concern after the events of 7 July. However, we need to work out the implication of what is proposed in this legislation. It should be emphasised that all the provisions, with the exception of Clause 52, go wider than any current definition of terrorism and cover broad questions of national security and "the public good". They fall to be tested, therefore, not only on the question of whether they are reasonable ways to deal with cases where people pose a threat to national security but also with those convicted or merely suspected of other crimes.
	A large number of organisations working in this field are of the view that the case for new legislation in this area has not been made and that the new provisions fail to respect rights and civil liberties. Existing immigration law contains ample powers to deal with those who pose a threat to national security. The debate in Grand Committee was characterised by the Minister sketching extreme cases for which more than adequate provision is already made under existing legislation; and then seeking to use those to contend for an extension of existing powers. All arguments about better provision in the Terrorism Bill are relevant but the clauses introduce a few new problems of their own.
	Let me spell those out. Clause 7 provides that if a case raises national security concerns the part of the appeal dealing with whether the appellant's human rights will be breached on return will be dealt with before removal and the part which deals with national security will be dealt with after removal as an out-of-country appeal. This creates a two-stop appeal out of a one-stop appeal. It is wholly at variance with the Government's approach in other parts of the appeal system that we discussed only recently.
	In Committee, the Minister said that the new clause is designed to streamline the process of appeals against deportation orders in national security cases. However, it streamlines nothing: it creates a two-stop appeal process, as the Minister acknowledged in Grand Committee. She said:
	"Our view is that SIAC is well and best placed to deal with what is, as the noble Lord said, the potential for a two-part appeal".—[ Official Report, 11/1/06; GC 99]
	In Committee in the Commons, the Minister of State reaffirmed and supported statements by the noble Lord, Lord Filkin, during the passage of the Nationality, Immigration and Asylum Act 2002: that the person is sent back and only then the question of whether they are a risk to the safety of the United Kingdom is examined; there are powers to prosecute people here, and powers to extradite them. The approach proposed by Clause 7 is, therefore, irresponsible. It may put the applicant at risk. In some cases the risk on return is born from the national security case against the appellant. That the British Government suspect persons of being a threat to national security, whether or not the suspicion is well founded, may be what turns their own government against them. If the British Government provided only details of the national security case once the appellant was back at home, this could put him or her at risk of torture. Those points were all put to the Minister in Grand Committee.
	SIAC cannot take into account what it does not know. If it does not know what is the national security case against the appellant, it cannot look at the relevance of this to the risk of torture or other flagrant breaches of human rights on return at the in-country stage of the appeal. One result of Clause 7 is likely to be that people are returned and then tortured. Another will be attempts to raise risk through judicial review challenges before removal.
	In other cases, where the national security case is known, it is likely to be rehearsed in detail as part of the human rights case pre-removal; and yet these points cannot be decided. Instead, the evidence must all be considered again at an out-of-country appeal post-removal involving repetition and wasting resources. It will result in the United Kingdom exporting risk. The Government have accepted that this is an effective way of tackling the threat from international terrorism. In practice, it would be difficult or impossible to separate the human rights and national security aspects of the appeal—for example, the threat to the appellant could derive from the national security case against him or her; that is, the fact that he or she has been labelled as a terrorist. This proposal is inconsistent with the general aim of a single appeal. It requires at least two appeals which would often involve the same question and evidence. The clause would result in unfairness for the appellant, who, having been deported, would not be present in the United Kingdom while the national security case against him or her is heard. I beg to move.

Lord Avebury: My Lords, we had an extensive discussion on Clause 7 in Grand Committee and since then we have had further exchanges with the Minister and her officials, for which we are very grateful. But, as the Minister knows, we were not convinced by the argument for a special process to be applied to a handful of cases where a person is deported on national security grounds. As my noble friend has said, a proposal in these cases alone is that there is to be a two-stage process, in which those parts of the appeal against deportation concerning the possible breach of a person's human rights on his return will be heard before removal, while the part that deals with national security is to be heard after the person has already been deported.
	As we have already shown, the very fact that an appellant is considered to be a threat to our national security may trigger the risk of persecution in the country of origin, irrespective of whether the suspicions held against him are well founded. That is why we say that, contrary to the assurance given by the noble Lord, Lord Filkin, we shall not use these powers to export risk; that is precisely what the clause does, as my noble friend has just explained. SIAC is never going to be able to consider the possibility that the national security case might have a bearing on the likelihood that a person's human rights would be violated, since this is not considered at the same time as a human rights case—as we say it should be.
	I wonder if we should distinguish between cases where a person has been convicted of a terrorist offence and those where the certification by the Secretary of State is based on evidence which is not in the public domain. Where a person has been convicted, and the Secretary of State certifies that the decision to make a deportation order in respect of him has been taken on grounds of national security, there cannot possibly be any argument that would speed up removal, as the Minister claimed, because the evidence on national security will already have been heard in the criminal case. The only additional matter to be argued, if the two aspects of the appeal are to be dealt with together by SIAC, is whether the evidence itself could have a bearing on the likelihood that a person's human rights would be violated in his country of origin.
	Either that is a trivial point, which is to be disposed of in a few minutes, in which case it has little, if any, effect on the speediness of the removal, or it is a complex matter requiring a great deal of extra time in the SIAC, which means it is essential in the interests of fairness for the two parts of the case to be connected. I would like to know which of those two the Minister prefers.
	In the case where the certificate follows a criminal conviction, it may or may not be reasonably clear from the evidence whether the national security case will affect the probability of the person's human rights being abused. But where the certificate is based on evidence which is not to be presented to SIAC until after the person's removal, it is impossible to say whether he is going to be put at risk. Even then, because the SIAC procedure involves the delivery of closed material to the special advocate, who is prohibited from communicating either with the appellant or his legal advisers without SIAC's permission and because the appellant and his lawyers are not allowed to be present at any closed session, it may be very difficult to assess the effect that the hearing might have on the authorities in the country of origin.
	However, there is a strong likelihood that the knowledge that an appeal has been made to SIAC would itself cause serious problems for the appellant, and increase the likelihood that he would be a target for human rights abuse. He might well decide not to pursue his right to an out-of-country appeal even though he believes the evidence against him is false or flimsy in case, by the very act of pursuing the appeal, he draws the attention of hostile authority to himself.
	In response to our arguments in Committee, the Minister gave details of a case that dealt with an entirely different issue. She ultimately acknowledged that it was irrelevant, and then said merely that SIAC would take our concerns into its considerations. That is the whole point; SIAC cannot take national security aspects into account and has no knowledge of its possible relevance to the risk of torture or other serious breaches of human rights at the first hearing, before removal, while to revisit the relevance at the second hearing would be too late. Therefore, one outcome of split appeals is that the appellants may be returned and then tortured. Another is that they will try to raise questions of risk by judicial review.
	We know that the Government are hoping to ward off objections to the deportation of the person suspected of being a security risk by entering into memoranda of understanding with the states concerned, reinforced by independent monitoring of the undertakings given not to torture or ill-treat returnees. In Jordan, the first and only country where monitors have been selected so far, the task has been assigned to the al-Adeleh human rights centre—an NGO formed as recently as September 2003 which is almost invisible on the web while proclaiming that its strategy is to avoid confrontation with the Government and security apparatus. The terms of reference for its monitoring of returns have not yet been agreed.
	Other countries with which similar agreements are contemplated, such as Egypt, Libya, Syria and, most important of all, Algeria, have not even got that far. Assuming that they will all agree to MoUs like the one agreed with Jordan in August 2005—and that monitoring arrangements for the treatment of returnees can be made with NGOs which inspire confidence—what happens if the returned person is then detained? He is entitled under the MoU to have access to the monitor and to be visited privately by him at least once a fortnight while in custody. The monitor is expected to report back to the UK on the conditions in which the detainee is being held.
	In the opinion of Amnesty International, the UK's reliance on diplomatic assurances while seeking to expel people to countries where they risk torture or other ill-treatment would violate its obligations under international law. Diplomatic assurances are inherently unreliable and, in practice, ineffective. They cannot relieve a state of its obligation not to forcibly return a person to a country where they would be at such risk. To reinforce that opinion, the only sanction for a breach of the MoU is for us to give the receiving state six months' notice of withdrawal from the agreement.
	Algeria is the country to which the largest number of people would be deported if the Government manage to complete these arrangements. It is a country where, according to Amnesty, torture is still used regularly against detainees. Algeria has not signed the optional protocol to the convention against torture, which provides a right of individual petition to the committee against torture; neither has any other state that is being considered for the MoU process. Algeria has blocked visits by the UN special rapporteur on torture for the past 10 years.
	We happen to know the Prime Minister's attitude to effective safeguards and compliance with international obligations not to send people back to countries where they may be at risk of torture or ill-treatment. That is from his intervention in the case of Hani El Sayyed Elsebai Youssef, an Egyptian whose application for asylum was not considered by the Secretary of State. That was on the grounds that he was a terrorist, though not charged with any criminal offence, and therefore excluded by Article 1a of the convention. No doubt we shall have a few words to say on that later.
	That case was important as it was the first time that we had explored the idea of seeking undertakings from a state to which it was proposed to return a high-profile terrorist suspect. A draft was produced in March 1999 and the initial negative reaction of the Egyptian authorities to our proposals was reported to No. 10 Downing Street at the beginning of April. Across the top of the letter, the Prime Minister wrote "Get them back", and next to the paragraph setting out the assurances that were objected to by the Egyptian interior minister, he wrote that they were a bit much and asked why we needed all of those things.
	It is against that background that we should consider Clause 7, which allows for the deportation of people who are considered to be a risk to national security back to countries where torture is practised, subject to unenforceable agreements that they will not be tortured. We really do not care what happens to them—or, at any rate, the Prime Minister does not—but we need a veneer of legitimacy to ward off challenges in the courts.
	Mr Justice Field considered that if the Egyptians had given the undertakings sought in the Youssef case, there would have been a reasonable chance that an English court would not have quashed the removal. The Government took the hint and proceeded down on the undertakings route, but Mr Justice Field did not have to consider the likelihood that the Egyptian Government would honour the assurances sought or that any effective remedy would be available if they were breached.
	No doubt that was why he was cautious in his assessment of what the courts would do in those circumstances. I would not be too confident that they would accept arrangements of the kind being made in the case of Jordan, but Parliament should consider the whole scheme, including the contract with al-Adeleh, with the advice of experts, before handing these powers to a Government who display such careless disregard for the protection from torture of individuals whom we may have every reason to fear and dislike. The convention against torture applies to suspected terrorists just as much as to heroes of resistance and to unjust and tyrannical rulers.
	Does that mean that we would never be able to get rid of the persons to whom the clause applies? No, it does not. It means that our efforts should be directed to persuading those countries to abandon the practice of torture; to honour their obligations under the convention against torture; to sign the optional protocol; and to issue invitations to the United Nations High Commissioner for Human Rights, including the special rapporteur on torture. In the mean time, the Government should agree to take the clause away. I beg to move.

Lord Judd: My Lords, before my noble friend replies, I should like to draw her attention to the serious consideration given to this point by the Joint Committee on Human Rights. I shall not detain the House by going over all the detail of how the committee reported, but perhaps I may highlight a couple of points on which it would be helpful if my noble friend could say something convincing today.
	The first is the export of risk. I for one simply do not understand how, given the nature of global terrorism, it is safer to have someone sent home, where we cannot monitor or control them, than it is to have them held in some way within our own system, subject to supervision and scrutiny. It would be very interesting to hear my noble friend's argument on why it is thought that that might be more appropriate, because we are dealing with the dangers of global terrorism. If it is global terrorism—and I am totally convinced of its reality—then it is arguably very dangerous to send someone who is regarded as a threat out of our jurisdiction.
	The second point on which it would be very helpful if my noble friend could clarify her conclusions and why she holds them is that if the matter is in effect to be dealt with in two parts, two stages, there is danger to the individual in a country where torture happens simply because the British Government have regarded that individual as a threat. That is what alerts the security system in all its uglier dimensions in a country about which we have anxieties. Therefore, it is important to hear from the Government why we are prepared to subject someone to that risk before we know what the nature of the risk is.
	The final point is that to argue that there will be a good opportunity for the security dimensions to be properly heard when the person concerned is already out of the country does, from the standpoint of many of us, beggar belief. The person will not be present at the hearing. By the nature of how SIAC conducts its affairs, there is in any case the limitation on contact between lawyers and suspect.
	If we are in the battle of winning hearts and minds and convincing people in this country that we really are committed not only to the principles of justice but to their full-hearted implementation, and of not seeing them short-circuited and destroyed simply because terrorist threats exist, then it becomes more important than ever to show young, troubled people in our country that we are standing by the law—and convincingly standing by the law—and that the law is as transparent as possible. The whole procedure laid down here is going to play into the hands of the extremists, who will start manipulating the minds of the vulnerable in our midst.

Baroness Ashton of Upholland: My Lords, I am grateful to follow my noble friend Lord Judd, who has a long and distinguished career and plays an important role in the Joint Committee on Human Rights. I trust that he accepts that I take very seriously the comments made by that committee and by the Members of your Lordships' House who serve on it. Where we all begin in our agreement is that we face an unprecedented threat, which is global. In this country we need to take our responsibilities to deal with such matters as seriously as possible. Clause 7 is part of that process.
	I absolutely agree with my noble friend about the critically important nature of the work we do to deal with—as he described—troubled young people. I have spent many years of my life doing that, working in our communities to look at ways in which we make people feel integrated, supported and part of society, while celebrating diversity and difference as part of that. As my noble friend and other noble Lords know, in making some of our communities of young people feel that, there are particular issues of identity and how they see themselves—to do with educational attainment, integration and their relationships, even with their parents and grandparents.
	My noble friend will know that some of my work in the Department for Education was involved in trying to address the concerns of some of our children and young people who felt alienated either from the education system or, more broadly perhaps, from our society. I absolutely accept the principle behind what my noble friend said. But I also accept the principle behind this clause. If the person is a threat to national security and is being removed for that reason, it is vital that removal should take place as quickly as possible. Of course, a person subject to deportation can be detained pending the hearing of their appeal and apply for bail. If bail is granted, that will normally be subject to strict conditions. However, compliance with such conditions has to be monitored and, as we know, that diverts police and security service resources from other work.
	Decisions to deport individuals on national security grounds are taken only after the most careful consideration. If the assessment is that the person constitutes a threat, we think it is better to remove the person at once and readmit them if the appeal is allowed rather than to permit them to remain here continuing to pose that potential threat until after the often lengthy—frequently very lengthy—proceedings are concluded. That is what the clause seeks to do. It provides for the speedier removal of individuals who threaten this country's national security. It does this because it provides that the appeal would normally be able to be brought only from outside the UK.
	In response to my noble friend Lord Judd, I do not think that appellants are disadvantaged by conducting the appeal from overseas. In the great majority of cases, much of the evidence is closed; that is, the detail is not disclosed to the appellant. The noble Lord, Lord Avebury, referred to the role of the special advocate. The appellant of course will be able to have a solicitor to represent him or her and to deal with open evidence. I do not accept that as a principled argument against this.
	I take issue with the noble Lord, Lord Avebury, particularly about my right honourable friend the Prime Minister, for I have been party to some of the discussions around these issues in my previous work at the Department for Constitutional Affairs. I take seriously our obligations under Article 3 of the Human Rights Act. It was this Government who brought that Act in. We did so in full knowledge of the commitment that we were making. We would work very carefully to ensure that people were not going to be deported where there was a threat of torture.
	The memorandum of understanding is specifically designed to deal with individuals and individual cases. It is more than just a diplomatic bit of paper. It is a carefully crafted agreement, where we can achieve it, between the two nations concerning an individual about what will happen. I know that the noble Lord, Lord Avebury, describes the organisation that has been appointed thus far as one that he does not know anything about. Neither do I. But those who are involved in ensuring that we have the correct monitoring are trying to make sure that we do it appropriately and properly. With respect to the noble Lord, Lord Avebury, just because neither he nor I know an organisation does not necessarily mean that it could not do a perfectly good job. Ultimately, the courts will play their part properly and appropriately in determining whether the memorandum of understanding is an appropriate agreement under which they can safely feel that a person could be deported.
	We are doing everything that we can in those very few cases where we believe that there is significant risk and that we should deport someone. I go back to the point made by my noble friend Lord Judd about exporting risk, on which the noble Lord, Lord Avebury, has taken me to task before. Part of this is about disrupting activities. It is possible to envisage circumstances where an individual operating in this country is significantly putting us at risk, but who, operating in another country, is not, because he or she has no desire to disrupt anything in that country, no desire to disrupt the way of life of that country, and no desire to change the way that that country operates. We are therefore not exporting risk: we are disrupting activity that could be extremely dangerous for the citizens of this country. As I have said before in debate, the most important thing that a government do is to make sure that their citizens are safe. We do so in full recognition of our international obligations under the ECHR and the Human Rights Act in this country. We need to work with our international partners to ensure that we do not export risk to them, but work collaboratively with them to deal with the global threat.

Lord Judd: My Lords, I am extremely grateful to my noble friend for giving way. I realise how irritating it must be. However, will she please spell out a bit more the logic of her position on the rejection of the concept that she is exporting risk? If a person is dangerous and is sent out of our jurisdiction, that person can become an extremely active agent in global terrorism; that is, in recruiting, organising and helping to build up international networks. How is it safer to export them out of our jurisdiction?

Baroness Ashton of Upholland: My Lords, if we felt that a person would become an international agent who would develop an even bigger network, we would have to consider that very carefully with other nations when thinking about deportation. Where possible, it is always our objective to prosecute people whom we think are a danger. But as the noble Lord will know perfectly well, that is not always possible. So we look for the available alternatives. There are a very few people whom in these circumstances it may be better to deport to another country as that would disrupt their activities here, where we genuinely believe with good cause that they would not be in the business of doing the same disruption in another country. My brief states that there is "a very small number", but it is a number none the less.
	As I have already indicated, the job of the Government is to try to balance all of the significant risks with their obligations in the international arena. That is what this seeks to do. I do not believe that I will convince the noble Lord, Lord Avebury, on this, but he has given me the benefit of several conversations with him, for which I am grateful. I am absolutely convinced that this clause should remain in the Bill. On that basis, I hope that the noble Lord will withdraw his amendment.

Lord Dholakia: My Lords, I moved the amendment. I thank the Minister for her response.

Baroness Ashton of Upholland: My Lords, it just felt as though the noble Lord, Lord Avebury, moved it.

Lord Dholakia: My Lords, there is a lot of difference between the two of us.
	I am grateful to the Minister for her explanation. She knows that since day one of the Bill our views on this matter have differed. She knows also the stance my party takes on issues regarding torture. All Members on these Benches are aware of the fact that when some asylum seekers have been deported, a certain number have never been located again. We do not know what happened to them. I would much prefer to trust in the justice system of this country than to rely on reports from Algeria, Libya and other countries like those.
	Our differences remain. For that reason, I intend to seek the opinion of the House.

On Question, Whether the said amendment (No. 11) shall be agreed to?
	Their Lordships divided: Contents, 59; Not-Contents, 156.

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 11 [Continuation of leave]:

Baroness Ashton of Upholland: moved Amendments Nos. 12 and 13:
	Page 6, line 7, leave out subsection (2) and insert—
	"(2) In subsection (2)(b) (continuation pending possible appeal) after "could be brought" insert ", while the appellant is in the United Kingdom,".
	(2A) In subsection (2)(c) (continuation pending actual appeal) after "against that decision" insert ", brought while the appellant is in the United Kingdom,"."
	Page 6, line 19, at end insert—
	"(4) After section 3C insert—
	"3D CONTINUATION OF LEAVE FOLLOWING REVOCATION
	(1) This section applies if a person's leave to enter or remain in the United Kingdom—
	(a) is varied with the result that he has no leave to enter or remain in the United Kingdom, or
	(b) is revoked.
	(2) The person's leave is extended by virtue of this section during any period when—
	(a) an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 could be brought, while the person is in the United Kingdom, against the variation or revocation (ignoring any possibility of an appeal out of time with permission), or
	(b) an appeal under that section against the variation or revocation, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).
	(3) A person's leave as extended by virtue of this section shall lapse if he leaves the United Kingdom.
	(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section."
	(5) Section 82(3) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (variation and revocation: extension of leave pending appeal) shall cease to have effect."
	On Question, amendments agreed to.
	Clause 13 [Over-staying leave pending appeal]:

Baroness Ashton of Upholland: moved Amendments Nos. 14 and 15:
	Leave out Clause 13.
	After Clause 13, insert the following new clause—
	"APPEAL FROM WITHIN UNITED KINGDOM: CERTIFICATION OF UNFOUNDED CLAIM
	After section 94(6A) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal from within United Kingdom: unfounded human rights or asylum claim) insert—
	"(6B) A certificate under subsection (1A) or (2) may not be issued (and subsection (3) shall not apply) in relation to an appeal under section 82(2)(d) or (e) against a decision relating to leave to enter or remain in the United Kingdom, where the leave was given in circumstances specified for the purposes of this subsection by order of the Secretary of State.""
	On Question, amendments agreed to.
	Schedule 1 [Immigration and Asylum Appeals: Consequential Amendments]:

Baroness Ashton of Upholland: moved Amendments Nos. 16 to 20:
	Page 33, line 8, leave out paragraphs 3 and 4.
	Page 33, line 24, leave out paragraphs 8 to 10.
	Page 34, line 1, leave out paragraph 14.
	Page 34, line 6, leave out from "orders)" to end of line 11 and insert "in subsection (5) for "94(6)" substitute "94(6) or (6B)"."
	Page 34, line 25, after "83A(2)"," insert—
	"(aa) in subsection (2)(a)—
	(i) after "3C" insert "or 3D", and
	(ii) for "(continuation of leave pending variation decision)" substitute "continuation of leave","
	On Question, amendments agreed to.
	Clause 15 [Penalty]:

Baroness Ashton of Upholland: moved Amendment No. 21:
	Page 7, line 31, leave out sub-paragraph (ii) and insert—
	"(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, effluxion of time or otherwise),"

Baroness Ashton of Upholland: My Lords, these minor technical amendments will clarify the definition of who may or may not be employed for the purposes of the civil penalty scheme in Clause 15 and the offence of knowingly employing an illegal migrant worker in Clause 21.
	The Bill currently provides that an employer may not employ an adult subject to immigration control who has not been granted leave to enter or remain in the UK, or whose leave to enter or remain in the UK is invalid, has expired or is subject to a condition preventing him accepting the employment.
	We have reflected on whether the term "expired" provides sufficient legislative clarity in every case where leave has ended, other than as a result of the passage of time. It is, of course, important to ensure that the obligations which these provisions place on employers are not ambiguous and that they effectively prohibit the employment of those not entitled to work.
	The amendments clarify that employers should not employ adults whose leave to enter or remain,
	"has ceased to have effect",
	by virtue of curtailment, revocation, cancellation or the passage of time. In moving the amendment, I confess that I have learnt a new word, "effluxion". I did not know that it existed, but all the lawyers in my department told me that that was down to my ignorance and my not being a lawyer. I beg to move.

Lord Avebury: My Lords, I am glad that the Minister noticed the word "effluxion". Your Lordships may remember that she was keen to remind us in Committee that "thinks that" had been adopted rather than "is satisfied that" on the ground that it was always preferable to use plain English. So I took the trouble to look up the word "effluxion". I did so first in the Oxford School Dictionary. It includes 30,000 words, which is a vocabulary slightly larger than most of us command, but the word was not there. Roget's Thesaurus contains it, alongside a number of alternatives which the parliamentary draftsmen no doubt looked at and discarded. The noble Baroness suggested that we might use "passage".
	In legal language, "effluxion of time" normally means the expiration of a lease or option or some other right due to passage of time, rather than due to a specific event that might cause the right to be extinguished, such as the destruction of a building. I do not think that its use has so far been extended to the immigration laws. Perhaps this would be a good opportunity to prevent it from spreading all over the statute book by referring to the OED. The meaning that the OED gives is,
	"lapse or passing away (of time)".
	I suggest that "lapse" ought to replace "effluxion" not only here, but in the several other places in this Bill where it occurs, as well as in other parts of the statute book that have been polluted by use of words other than plain English.

Baroness Carnegy of Lour: My Lords, there is a serious point here. The Minister said that the purpose of the amendment was to make the provision unambiguous. She did not know the word; I certainly did not. The noble Lord, Lord Avebury, looked it up and told us what the dictionary says. If the amendment really means the passage of time, it should say so; if it means the expiry of time, it should say so. It is not a good idea deliberately to include a word—presumably for some reason or other—if one can use a synonym which is perfectly acceptable and which everybody understands.

Baroness Ashton of Upholland: My Lords, I agree about using plain English, partly because there are lots of words in the English dictionary that, sadly, I do not know. The noble Baroness's noble friend Lord Brooke usually uses several such words in his contributions and I have to rush away later and discover what they mean. However, I checked the word, precisely for the reasons which the noble Lord, Lord Avebury, and the noble Baroness, Lady Carnegy of Lour, indicated as being important. They are important to me, too. We need to use this word because it has a resonance which brings clarity to this legislation. The need for clarity is absolute. We do not want there to be any lack of it. My best and strongest advice is that this is the appropriate word to use in these circumstances. I argue for clarity every time: I have received at least one other note from parliamentary counsel on another issue where I have thought about plain English. I said that the word is new to me, but I am reassured by my legal team and my parliamentary consultants that, in this context, the word will be of great value because it is absolutely clear. I hope that the noble Lord will accept the amendment on that basis.

Baroness Carnegy of Lour: My Lords, what then does "effluxion" mean?

Baroness Ashton of Upholland: My Lords, I do not want to get into a Committee debate at this Report stage. The noble Lord, Lord Avebury, gave a very clear definition. I sought in my note to explain precisely what it meant, which is why I referred to it as being a clear explanation of what we are trying to achieve.

On Question, amendment agreed to.

Baroness Anelay of St Johns: moved Amendment No. 22:
	Page 7, line 38, at end insert—
	"( ) An employer is excused from paying a penalty if it is the first time he has acted contrary to this section, and he—
	(a) co-operates fully with enforcement officers; and
	(b) is willing to take help and advice to avoid the repetition of the offence."

Baroness Anelay of St Johns: My Lords, in moving the amendment, I shall speak also to Amendment No. 24. I have tabled the amendments in response to a briefing from representatives of the Chinese, Bangladeshi, Indian and Pakistani communities in the UK. They are probing amendments which seek some explanation and assurances from the Minister.
	We debated Amendment No. 22 in Grand Committee and, as we are now at the Report stage, I shall refer to it only briefly now. It would excuse an employer from paying a civil penalty if it was the first time that he had contravened the provisions of Clause 15, if he had co-operated fully with the enforcement officers and if he was willing to take help and advice so that he does not reoffend.
	Members on all sides of the House have made it clear that they deplore the employment of those who have no right to work here. Illegal working can end in tragedy, as we saw at Morecambe Bay. All good employers and their representative bodies support the principle of sanctions on employers, but are concerned about the detailed implications of the Government's proposals in this Bill.
	Amendment No. 24 would require the Secretary of State to consult employers before the Government put into place the civil penalty regime. In Grand Committee, the Minister made available a draft of the code of practice. What further developments have there been on the draft code? Have any improvements been made as a consequence of any further consultations that the Minister has held? She stated in Grand Committee that she anticipated meeting again representatives of the various ethnic communities which had expressed their concerns. She made some reference to that earlier today during tributes to Lord Chan. Will she bring us up to date on those meetings?
	I have been advised by Christine Lee of the North London Chinese Association that she and her colleagues have held briefing meetings around the country—for example, in Manchester, Birmingham, Stirling and Sheffield, in addition to London. At Second Reading, Lord Chan gave a full explanation of their reasons for concern and set it carefully against the background of the development of their small businesses, which are so important to the UK economy. Ms Lee and her colleagues point out that the Government have not had any consultation specifically with the Chinese, Bangladeshi or Indian catering sectors or with any other organisations which involve employers who rely on overseas workers in the restaurant industry. I would be grateful if the Minister could respond to that point today.
	I am also advised that many employers do not have the time or resources to perform the policing role that they believe is better and more appropriately performed by the IND. The Minister will be well aware of the vibrancy of the catering sector represented by Ms Lee and her colleagues. It is also interesting to note that the most recent statistics published by the Government demonstrate the importance of the Chinese ethnic group in England. The Government's press release of 26 January states:
	"The fastest population growth between 2001 and 2003 in England was in the Chinese ethnic group with an average annual growth rate of 11.1%, largely due to the net international in-migration of people born in China".
	This exactly reflects the evidence adduced by Ms Lee about the importance to small catering businesses here of being able to recruit chefs and kitchen staff directly from China.
	Mr John May, vice-chair of the North London Chinese Association, has put forward three proposals to improve Home Office practice. First, the Home Office should include a non-compulsory invitation to disclose the respondent's ethnic group when an individual or a group responds to a consultation exercise; secondly, the Government should publish the ethnic breakdown of respondents to consultations; and, thirdly, the Home Office should as a matter of urgency produce the list of stakeholders that it has undertaken to compile and should make positive efforts to include Chinese community and business associations on that list. I appreciate that, as we recognised earlier, the Minister has her locus in the DCA and is taking this Bill forward on behalf of colleagues in the Home Office, but will she agree to discuss those proposals with her colleagues at the Home Office to ensure that this is a continuing process?
	I referred in passing to these concerns when we debated the Identity Cards Bill on Monday of last week. I was cautiously optimistic about the response of the noble Lord, Lord Bassam of Brighton, who expressed an intention of the Home Office,
	"to reach out to those groups who would otherwise ordinarily feel excluded from consultation".—[Official Report, 30/1/06; col. 72.]
	But, as the vice-chair of the North London Chinese Association points out to me, the devil is in the detail. If the Government do not know who these groups are and how to contact them, outreach will not work, however good the Government's intentions are. I beg to move.

Baroness Turner of Camden: My Lords, I speak to Amendment No. 23, which is included in the group that we are discussing. I introduced a rather similar amendment in Grand Committee. This one is rather shorter but is concerned with the use by employers of migrant workers as cheap labour. In Grand Committee, perhaps because of the way in which I spoke about the possibility of regularising illegal workers, much of the discussion—and, indeed, the response of my noble friend the Minister—dealt with the whole issue of the employment of illegal workers.
	The main objective of my amendment is to draw attention to the fact that there are unscrupulous employers who will exploit migrant workers if they can get away with it and that everything possible should be done to make sure that they do not. I have already drawn attention in previous debates to the way in which the director-general of the CBI has welcomed immigration on the ground that it deals with "wage inflation"; in other words, it keeps the general level of wages down. Migrant workers are willing to work for low wages; they are often quite unaware of the existence of minimum wage rates or of health and safety conditions and are much too scared to take issue with their employer even if they are aware of them. Many of them are sending part of their earnings home to families who are even poorer than they are.
	Of course, a suspicion that migrant workers are undercutting wage levels does not help race relations. I am glad that trade unions are recruiting among migrant workers and doing their best to improve wages and conditions. However, there are problems. On the BBC's "Politics Show" at the weekend there was discussion of this whole issue. It is clear that some people think that a free market in labour is keeping down the general level of wages and is therefore to be welcomed. That is all very well; large profits can be made but, of course, as usual, the very poor pay for it. For that reason my amendment refers to the right to join unions and to participate in workshop organisations.
	I hope that this time round my noble friend the Minister will be willing to respond sympathetically to the wording of the amendment. As I said earlier, in Grand Committee and, I believe, at Second Reading, the possibility of migrant workers undercutting the general level of wages is not a very good idea in this country. It can lead to a worsening of race relations and make employment relations that much more difficult. I therefore hope that my noble friend will be prepared to view what I have said with sympathy.

Lord Dholakia: My Lords, I support what was said by the noble Baroness, Lady Anelay, about the issue affecting the Chinese community. All of us have met the person concerned at different times and she has made representations on behalf of the Chinese community. However, she also made it very clear that the issue affects other minorities, particularly those involved in the catering industry.
	One of the assumptions that is often made by decision makers is that if you have a large ethnic community in this country, particularly involved in the catering trade, you should be able to find people from that community to provide services. That is utter nonsense. A large number of people growing up in this country who comprise the second, third or fourth generations of their ethnic minority do not want to do precisely what their parents did. They have received a better education and are better qualified than their parents and do not want to go into the catering industry. However, that industry creates substantial wealth for this country. It contributes about £2.3 billion or £2.4 billion to the British economy. We ought to be careful to ensure that no generalised assumptions are made where applications are concerned and that the Minister takes into account the special needs of that community to be able to make them.

Lord Avebury: My Lords, if the Minister has not already done so, I suggest that she also meets Bangladeshi restaurateurs. She has met Chinese restaurateurs on two occasions. Bangladeshi restaurateurs and the Bangladeshi food industry probably comprise at least as big a contributor to our economy and to gastronomic excellence as the Chinese food industry. I hope that the Minister agrees that both of them deserve to be heard.
	During the consultations, various representations were made. The noble Baroness, Lady Anelay, gave us details of three proposals made by a leader of a Chinese community association. I hope that the Minister can publish the results of the consultation that she has held with both sectors before Third Reading, as it would be enormously helpful to your Lordships to know that at least we are moving in the right direction in accommodating the special needs of those industries. I believe that that would satisfy the noble Baroness, Lady Anelay.
	With respect to the amendment spoken to by the noble Baroness, Lady Turner, it occurred to me while she was speaking that if one merely provided that the treatment of migrant workers was not less favourable than that which applies to national workers, one would miss something, because most of these people are employed in a sector where there are no nationals. As we have constantly heard during our discussions with both the Chinese and the Bangladeshis, the natives of this country do not know how to do Chinese or Bangladeshi cooking. That is the reason why people come in from abroad to carry on those operations. Therefore, there is no exact equivalent with which to compare them. If one were to make provision for these workers, as is suggested by the noble Baroness, it would have to be applied to national workers in equivalent occupations. Then I think that the issue would be properly taken care of. I hope that the noble Baroness will consider that. The measure is a good idea in principle.
	As regards the employers who will go on the register, one of the factors that ought to be considered—even if it is not formally put into the statute—is how they treat existing migrant workers. They should not get on to the list of approved employers for the points scheme unless the noble Baroness and the Government were satisfied that they treated migrant workers as favourably as local workers.

Lord Lyell of Markyate: My Lords, in supporting my noble friend Lady Anelay's amendment, I make the following points. This is a civil penalty. No doubt the Minister has told us, but I am sorry that I do not know how much she has in mind for it and what the maximum is. However, what the amendment suggests is reasonable. Once the Government have caught up with an employer thought to be employing those he should not be employing, it is likely that he will either be stopped by having it drawn to his attention or he will carry on regardless. The Government are keen on civil penalties. When one is acting as an enforcement authority, this method of enforcement provides a cumbersome form of appeal and places all the burdens on the defendant. One can justify that sometimes, but we are nudging up against what is reasonable. It is extremely important to remember that any prosecutor should act reasonably before enforcing. The amendment asks the Government to act reasonably. I hope that the Minister will take that point into account.

Baroness Ashton of Upholland: My Lords, I am grateful, not least to the noble and learned Lord, Lord Lyell, for joining our debate. We spelt out in our debates in Committee many of the issues that he rightly wishes to address. There is a maximum penalty. It can be applied at different levels in order to recognise the contribution of employers in making sure that they were trying to act reasonably and so on. The Secretary of State is required to act reasonably. Perhaps I may refer the noble and learned Lord to those discussions. He can then come back to me if I can give him further detail.
	I completely accept the points about behaving reasonably and trying to make the system work appropriately. The noble and learned Lord will know that we have brought it in in order to try to deal with a problem without criminalising employers, but recognising that some perhaps do not do their job properly and are sloppy and those who cannot be bothered need to recognise that a penalty is involved. The majority of employers do not behave in that way; and hence part of what we are seeking to do is to address working with employers to recognise that we all have a bit of a part to play in making sure that the right workforce is operating for business. In a quick snapshot that is the background to the amendments; I am grateful to the noble and learned Lord for giving me the chance to make those remarks.
	As the noble Baroness, Lady Anelay knows, I have met Christine and other members of the Chinese community and representatives of the Indian, Pakistani and Bangladeshi restaurant community too. We talked about food a great deal and it was hugely enjoyable. We talked a great deal about the issues of small employers and their concerns. It was not a formal consultation but I am happy for the correspondence to be placed in the public domain. I am not sure whether a record of the meeting was taken, but I have no difficulty with the points from the meeting being made public and I hope that the noble Lord, Lord Avebury, will accept that I will do that in good faith.
	I turn to the amendments in the name of the noble Baroness, Lady Anelay. She invited me to talk further about the draft code, around which we had a discussion. It is currently being revised in the light of our discussions in Committee. As soon as I have a new version I will make it available to your Lordships. We took on board the need to be clearer about the way in which the penalties will operate and we recognise the role that employers will play in collaborating when issues arise.
	The critical question within Amendment No. 22 is the yellow cards system—as I referred to it before—which the CBI has felt strongly about. The difficulty I have is that it provides a complete excuse not to have recognised the fact that one has not done something that one should have done. I turn to the conversations with the different communities. It was clear to me that they were concerned that what they were being asked to do should not be onerous. I completely agree with that. We do not expect employers to become experts in forgery, nor indeed necessarily to have a great understanding of all the documentation. However, it is reasonable to ask them to look at documents and to check photographs of the person involved. We will be working through the helpline and with the different officers who will be working with them to give support and advice to employers so that they become better at understanding what the documents will do.
	We also talked to the community about how frequently one would be expecting to consider documents again. Noble Lords will know from Committee that we discussed 12 months as being the point, regardless of whether the employee had a six-month visa and was going to renew it. We are not expecting them to keep track of individuals in that way, but we think that about once a year is right. In speaking to the community I believe that at the end of the meeting there was great reassurance about the way in which we are seeking to approach the issue and that it is not about trying to catch people out or to make life more difficult. The representatives also spoke about circumstances where they felt it would be better if there was greater clarity and understanding about what they had to do so that they would be clear about the process. They wanted to make sure that they were employing people legally for all the reasons that noble Lords would expect. So we made significant progress in talking through how this measure would work.
	The noble Baroness, Lady Anelay, talked about consulting. I agree that we cannot consult people whom we do not know exist. We certainly now have in mind to make sure that the Chinese community and the Bangladeshi, Pakistani and Indian community, particularly around the restaurant business, are consulted. I am grateful again that the late Lord Chan was able to do that for us. They will certainly be part of what will be a consultation. I place on the record that this will be a full, detailed, public consultation on the measures proposed. It will be in accordance with the Better Regulation Executive's code of practice on consultation. It will last for 12 weeks and responses will be analysed. It will pay particular attention to possible new approaches to the questions that have been consulted on, evidence given on the impact of the proposal and the strength of feeling among particular groups, which in part seeks to deal with the issue that Mr May raised, as the noble Baroness, Lady Anelay, mentioned. I will commit to taking that issue away to discuss with my colleagues in the Home Office, and I will come back to the noble Baroness with copies to other noble Lords of what has been determined.
	Once the consultation has taken place, copies will be placed in the Libraries of both your Lordships' House and another place to ensure that they are available to noble Lords as well. I hope that that will be sufficient to enable noble Lords to feel comfortable that we are determined to make sure that employers work collaboratively with us and that the civil penalty side is simply to address the fact that we know there will be circumstances where unfortunately perhaps a few employers do not do that and we need to deal with that properly and efficiently. In Committee and, I hope, this evening, I have made it clear how we will do that and I have indicated that we will obtain more details of the latest code of practice, which will take on board points to be made.
	I turn to Amendment No. 23 in the name of my noble friend Lady Turner of Camden. I am sorry that I did not address it properly in Committee, although I sought to do so. My difficulty is that it is in the wrong place, because in this Bill we are trying to deal with illegal working. There are specific issues where we are seeking to deal with illegality that do not apply to those people working legally and who, as my noble friend rightly said—I sensed a great deal of support for her proposals—were people who work legally in the system but are not treated properly. They are not treated properly in part because people think that because they are migrant workers they do not need to be.
	Because I am a DCA Minister I am not sure where to take the proposal, except to say that I could not agree more with the sentiments behind it. However, I cannot insert it here in the Bill because the Bill is about illegality and I would not want migrant workers working properly and legally to be mixed up in our minds with those who work illegally. All I can do that might help is to commit to take away the issue and look at it with the appropriate department, which may be the Department for Trade and Industry rather than the Home Office. We can then come back to my noble friend and invite other Minister colleagues to meet her to see what more could be done to address the issue. It is an incredibly important issue but I hope my noble friend will understand that it is not right in this Bill, not least because we do not want to mix up illegality and legality for this important group of people. I hope that I have reassured the noble Baroness, Lady Anelay, and that she will be able to withdraw her amendment.

Baroness Turner of Camden: My Lords, I thank the Minister very much for that assurance, and I look forward to hearing from her.

Baroness Anelay of St Johns: My Lords, I am grateful for the support of the noble Lords, Lord Dholakia and Lord Avebury, and my noble and learned friend Lord Lyell of Markyate. The noble Baroness is right; we are trying to elicit assurances from her, and I am very satisfied with what she has said today.
	In particular, she referred to the fact that the draft code is under revision. It certainly would be very useful for the House to be able to consider that latest draft before Third Reading, now that we know that the Government are minded to ensure that other consultation matters will be before us by that stage. I am also grateful to her for spelling out so clearly that the public consultation will follow the proper rules and will be full and detailed. I am grateful for her offer to talk to her colleagues in the Home Office about the way in which they carry out consultation in the future.
	I make a commitment that in discussing such matters with organisations such as the North London Chinese Association I will discuss how they might be able to approach other departments in an effective way. One of the matters that has been highlighted here is that it is often very difficult for small organisations to respond to government initiatives and Bills because they do not have their focus on the department concerned. If I am a Chinese restaurateur, I might well expect that my focus is on DCMS, because that is the department that has control over the tourism industry. If I am a member of the British Hospitality Association, all my focus is on what the association is talking about to DCMS, and I might then miss what is being done by the Home Office. I might more easily have my focus on DTI; certainly the Home Office is not a natural focus of my attention as a businessperson. I am grateful to the Minister. I am sure that we will all try to ensure that we better carry out our duties in consultation; although we do not have the resources of the Government to do it as effectively—yet. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 19 [Code of practice]:
	[Amendments Nos. 23 and 24 not moved.]
	Clause 21 [Offence]:

Baroness Ashton of Upholland: moved Amendment No. 25:
	Page 10, line 37, leave out sub-paragraph (ii) and insert—
	"(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, effluxion of time or otherwise),"
	On Question, amendment agreed to.
	Clause 32 [Passenger and crew information: police powers]:

Lord Dholakia: moved Amendment No. 26:
	Page 16, line 18, leave out paragraph (b).

Lord Dholakia: My Lords, Amendment No. 26 deals with Clause 32 on passenger and crew information and police powers. We define this very much as a rendition amendment. Much of the discussion has taken place in the other place. One of the difficulties that we have faced in recent times is the words that repeatedly cropped up there: extraordinary rendition, which is the covert, involuntary transfer of individuals—commonly terrorist suspects—between one country and another. In particular, extraordinary rendition refers to the alleged US practice of rendering terrorist suspects to countries—usually Middle Eastern or Asian states such as Egypt, Morocco or Jordan—where they are subjected to torture or other mistreatment to obtain information.
	The Minister looks puzzled about why I am talking about that. I am simply setting the background of the purpose of the amendment. Since we have not been able to get any further with this matter, particularly in relation to questions being put to the Foreign Secretary, it is right and proper that we have a system in this country when we give police powers to be able to seek such information that it is systematically collected. Will the e-borders system being set up by the Immigration, Asylum and Nationality Bill monitor as a matter of course all flights in and out of the United Kingdom, both civil and commercial?
	A specific reason for collecting routine data from private jets as well as commercial airlines is that private aircraft are alleged to have been used by the CIA to transfer prisoners illegally and for the purposes of subjecting them to interrogation methods including torture and/or inhuman and degrading treatment. British police forces have a positive duty to investigate allegations that such flights have touched down in the United Kingdom, because if that is proved to be the case there would be an obligation on them to intervene and make arrests to prevent an illegal act taking place. We would welcome assurances that passenger details will be required from all flights, including those that touch down only for refuelling, so that investigations can take place where appropriate.
	It is currently not clear what information is required from private aircraft landing in the United Kingdom. It may be that no record exists for non-fee-paying passengers on those flights, or that records are not kept when the plane is simply landing for the purpose of refuelling. Will the Minister clarify the way in which the current rules operate? What information is currently required from non-commercial charter flights, including those where the aircraft is carrying neither fee-paying passengers nor cargo, and where the aircraft is simply landing briefly for the purposes of refuelling? Where is that information held, and for how long is it held? That would go a long way in terms of giving some information on some of the practices that we all condemn. I beg to move.

Lord Avebury: My Lords, there are comments in the recent report by the noble Lord, Lord Carlile, on the operation of the Terrorism Act 2000, about lax security at small ports and airports and poor management of passenger manifests. I will not go through the quotes from the report, as I am sure that the noble Baroness is familiar with them. The report expresses anxiety that manifest information may be inaccurate, inadequate and given a low level of importance by transport operators, and that vital clues to terrorism may therefore be missed. Conversely, good manifest information can save lives. Why the selectivity? What is the purpose of allowing only the collection of information on certain limited flights or routes when, according to the noble Lord, Lord Carlile, we should be collecting all that information if we want to be safe from terrorism?

Baroness Ashton of Upholland: My Lords, I have read the report from the noble Lord, Lord Carlile, who could not be with us today. My interpretation was slightly different. We recognise that there is more to be done in terms of small ports and airports but there is a big question about the resource implications of collecting all information at all times in all cases. The Bill seeks to enable the police to have the power to make sure that we are able to get information when there is a reason to get it.
	The obvious examples that noble Lords will be aware of historically are when we have a concern about a piece of intelligence that suggests that there could be a problem with a flight between, for example, London and Washington, but we do not know which airline or what time of day may be affected. It may be that one would collect information for a specific length of time on a specific route. It may also be that we get information that we should worry about a threat to a particular airline, so we might collect information from the airline across Europe or across the United States destinations and so on. The specific purpose behind all of that is to enable us to target and get information appropriately that will help us to deal with potential threats of any kind or potential need to get information that would help us in a variety of ways, not least on terrorism.
	The noble Lord, Lord Dholakia, took me by surprise, because he has transformed an amendment on that subject to, if I may say, a different issue. I am not going to try to second guess the comments of my right honourable friend the Foreign Secretary, who has made a number of statements about this issue. I listened carefully to the points that the noble Lord made. The purpose is to deal with the potential difficulties and threats that we face; it is not to collect information in a general sense for a different purpose. I volunteer to look back on the comments and either write to the noble Lord or arrange an appropriate meeting on it. I am sure that the officials will be happy to do that too. I should simply say that the matter he raised does not relate to this part of the Bill and it would be wrong of me to try to deal with it, because I would not do it well. I would rather do that separately and appropriately.

Lord Dholakia: My Lords, I thought that we were being rather helpful to the Minister by identifying the treatment received by people suspected of being terrorists. However, I am grateful that the Minister said that she would look at that matter and come back to us at some stage, at least before Third Reading. That would be helpful and, meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 39 [Disclosure to law enforcement agencies]:

Lord Hylton: moved Amendment No. 27:
	Page 21, line 14, at end insert—
	"(1A) Information may only be disclosed under subsection (1)(d)—
	(a) for police purposes;
	(b) with the consent of the Secretary of State.
	(1B) The Secretary of State shall give his consent only if satisfied that the information can be shared without breaching Convention rights."

Lord Hylton: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 28 and 29 grouped with it. The three amendments tighten up the loose and sloppy drafting of the Bill. They are a definite improvement on my earlier attempt in Grand Committee. They provide the important safeguards that information may be disclosed outside the United Kingdom only for police purposes and with the consent of the Secretary of State.
	Amendment No. 29, which is consequential, precisely defines "police purposes". Amendment No. 28 provides for accountability and transparency by requiring the Secretary of State to specify the external agencies by means of an order.
	This brings Clause 39 into line with Clauses 32 and 33. I hope that my approach will be acceptable to your Lordships' Select Committees on human rights and on the constitution. I trust that it will commend itself to the Government on grounds of both principle and drafting. I beg to move.

Lord Avebury: My Lords, the noble Lord, Lord Hylton, has brought us back to the question of what limitations there should be on the purposes for which information obtained under the new powers in Clauses 32 and 33 should be disclosed to foreign law enforcement agencies, how we can ensure in the Bill that none of these disclosures would lead to a breach of human rights, and whether the definition of "foreign law enforcement agencies" should be restricted so that only responsible agencies in countries that respect human rights would be included.
	When we looked at these problems in Grand Committee, the Minister argued that in deciding whether to disclose a particular item of information, the 44 chief police officers in England and Wales and Northern Ireland, plus the eight chief constables in Scotland, who should also be considered in this context, had the knowledge and expertise to assess whether it could result in a breach of human rights. I am sure that every one of those 52 chief officers would do his best to make an assessment of whether, as the noble Lord, Lord Hylton, put it during the debate on this clause in Grand Committee,
	"to disclose very sensitive information to any other foreign law enforcement agency".
	But is it fair of Parliament to lay that responsibility on them without further guidance? The Minister said that:
	"States with excellent democracies and very good track records are still asked, in the context of sharing information, whether their systems can be relied on to ensure that the information is used appropriately and stored effectively".—[Official Report, 17/1/06; col. GC 221.]
	If I may digress for a moment, there is no general framework for data protection in Pillar 3 of the European Union, but there are individual sets of rules and supervisory arrangements covering particular areas such as Europol and Eurojust, the customs information system, the Schengen information system and so on. Your Lordships' European Union Committee recommended, in its report, After Madrid: The EU's response to terrorism, that,
	"enhanced information exchange in the EU, and the trend towards greater profiling of individuals, necessitate the establishment of a common EU framework of data protection for the Third Pillar".
	That was nearly a year ago, and it would be useful to know whether any progress was made towards that framework during our presidency and, meanwhile, what data protection regime would cover disclosure under Clause 39 to any agency in another EU state. Would information acquired under Clauses 32 and 33 be covered by the draft framework decision tabled by the Swedish Government in June 2004, which would give police authorities of one member state access to information and intelligence held by authorities in other member states under conditions no stricter than those applicable at national level, and has any progress been made on the principle of "equivalent access"?
	The fact that law enforcement agencies in EU member states exchange information only on the basis of agreements that safeguard data protection means that we could simplify the task imposed on police officers in deciding whether to transfer information under this clause. If one of the amendments were adopted, the Minister could give an undertaking that no order will be made in respect of any person mentioned, unless there is an agreement with the state under whose jurisdiction the person operates on data protection covering the information in question. There would be a list of the countries with which an agreement exists and the extent of the information that it covers. If the country is not on the list or the agreement does not cover information of the kind specified in Clauses 32 and 33, the chief officer would not have to consider whether, notwithstanding the existence of satisfactory data protection arrangements, there was any reason to suppose that an individual's human rights could be at risk from the act of transferring the information.
	Obviously, we do not have data protection agreements with states that we discussed in Grand Committee, such as Burma and Zimbabwe, and it would be useful if the Minister could tell us what countries outside Europe we have agreements with that would permit transfers under Clause 39. If it is a fairly short list, as I suppose, and she confirms that chief officers would have to consider transfers only where the receiving country is on the list, the task of chief officers may not be quite as onerous as we feared.

Baroness Ashton of Upholland: My Lords, I am grateful to the explanations given by the noble Lords, Lord Hylton and Lord Avebury. Sadly, I will resist the amendments because, apart from anything else, one has to be clear about the amount of effort and energy that would be appropriate, particularly because it would place a particularly burdensome requirement on the Secretary of State and the police.
	However, I seek to reassure the noble Lord, Lord Avebury, on some of the issues he raised. First, it is right and proper that human rights issues are taken forward under Article 8 of ECHR and we expect chief police officers to take this seriously. The Human Rights Act is a backdrop to all public service. We expect people to take it seriously and I believe that they do. In all of these issues it is important that that is noted and that people recognise the importance of doing so.
	The Data Protection Act and the eighth data protection principle come into play. That principle states:
	"Personal data shall not be transferred to a country outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data".
	It is a principle that would be followed. The noble Lord, Lord Avebury, asked me how we would deal with the framework decision in terms our presidency and the work on data protection. The noble Lord knows that I am responsible for data protection in government and I spent a huge amount of time during the presidency dealing with many issues relating to data retention and data protection. He will also know that the European Parliament has started its deliberations on the work proposed by the Commission and the Council has not yet reached conclusions—not least, because there is a huge number of issues to take forward. I am happy to keep the noble Lord informed of how we get on. It is expected that we will make significant progress under the Austrian presidency. My own view is that we will not finish this until the Finnish presidency, because there is much to do.
	There is a great deal of commitment, particularly in the European Parliament, to ensure that the balance between how we share data and how we protect them is recognised. The Justice and Home Affairs Commissioner Franco Fettini has often talked about the scales of making sure that alongside security you protect people's rights, and the Council of 25 nation states have approached that from different viewpoints, but I find a general recognition within the Council that this is an important aspect of what we do.
	Noble Lords will also know that at Vienna we discussed issues concerning Europol and data, ensuring that we had a consistent approach. I took that forward for the Home Office. As regards European Union work, we have to ensure that data protection issues are correctly understood and undertaken. There are issues about sharing data between nation states. We need to be clear with whom we are sharing information, on what basis and in what the circumstances and, broader than that, we have to recognise the importance of this.
	On the data protection principle, the exceptions that are applied concern substantial public interest. We need to think very carefully about what we are seeking to achieve. Essentially this concerns enabling the appropriate level within our police services to share information and give information appropriately. We believe that the safeguards are there. We accept the role of the Human Rights Act, as do the police. We accept the data protection principles, particularly the eighth principle. We accept that in the European Union much work still needs to be done on data protection but people need to be willing to adhere to how far we have gone. Our information commissioner meets regularly with his counterparts in Europe to discuss these issues. He and I are considering how best we can work together to deal with data protection issues across Europe. I am not sure whether that fully reassures the noble Lord, but I am very clear about the way in which we are seeking to approach the issue.

Lord Avebury: My Lords, the noble Baroness has made a very useful comment about how the data protection principles are applied. I was also suggesting that if these chief police officers have at least a list of the countries with which we do not have a data protection agreement, they would know that they would not have to begin to consider the human rights implications of transferring information. Under the data protection principles, there would be no question of allowing the receiving agency in those countries to have that information.

Baroness Ashton of Upholland: My Lords, as far as I am aware, we do not have a list. The reason is that there are different nations which have different approaches to data protection, but that does not mean that they do not take it seriously. As far as I know, we have not gone down that road. If I discover that that is wrong—I do not believe I shall discover it is wrong—I shall come back to the noble Lord. As data protection Minister, I think I would know if we had a list of nations and I certainly do not.
	That is an interesting thought and one that I shall consider, not, I hasten to add, as regards this Bill, but as regards broader pieces of work that I am undertaking on data protection. In this legislation, I would be very reluctant to hamper the opportunity to share information appropriately and properly simply because someone is not yet on the list because we have not got round to putting him on the list. As the noble Lord will know, I am not a list person. None the less, I shall reflect on what the noble Lord said.
	I am conscious that I am addressing all my remarks to the noble Lord, Lord Avebury, and that the noble Lord, Lord Hylton, moved the amendment. I am sure the noble Lord will not mind.
	We seek to do this while recognising our responsibilities on human rights and data protection. I have picked up the points made by the noble Lord, Lord Avebury, but I shall resist the amendment as I believe we have the situation about right. I do not want to restrict the opportunities for police forces to be able to share information by requiring the Secretary of State to be involved in all cases. I do not believe that is workable, although I can see why the noble Lord would want it. I believe it is too much of a burden. I resist it on that basis. I hope the noble Lord will feel able to withdraw his amendment.

Lord Hylton: My Lords, I am very disappointed that the Minister resists the amendment. I had thought that it improved the drafting of the clause. I point out that we are talking about the whole world; we are not limited to the European Union which, on the whole, has fairly good practices, although they may vary from country to country. We are dealing with all regimes in the world. I would be somewhat reassured if the noble Baroness could tell me that this power—I accept it is only a permissive power—to disclose information is strictly limited to information arising under Clauses 30 to 33 of the Bill.

Baroness Ashton of Upholland: My Lords, this is Report stage and I am conscious that I am not able to speak again, but yes, it is restricted to Clauses 32 and 33. I hope that that reassures the noble Lord.

Lord Hylton: My Lords, that is some help because Clause 33 deals only with freight information and it is hard immediately to see how that would prejudice the rights of people in this country. On the other hand, Clause 32 deals with passenger information which could perfectly well be information about citizens and bone fide residents of this country, for example, returning home after a perfectly lawful and normal journey. That is why I believe there is a need for safeguards. I know that the Minister mentioned some existing safeguards. Can she say whether these are only or principally under our existing Human Rights Act or are there some other kinds of safeguards?

Lord Evans of Temple Guiting: My Lords, I am extremely sorry to interrupt the noble Lord. This is Report stage. Once the Minister has sat down, she cannot speak again. I would be very grateful if the noble Lord would realise that this is not Committee stage but Report stage.

Lord Hylton: My Lords, I am perfectly well aware that this is Report stage. I am inviting the Minister to write to me, or to communicate with me by some other means. Perhaps she could indicate later whether there will be very clear guidance sent from the Secretary of State to all 43 chief police officers to guarantee that they do not infringe the human rights of citizens and residents by disclosing information that may be prejudicial to them. If I could have that kind of understanding, I would be happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 28 and 29 not moved.]
	Clause 40 [Searches: contracting out]:

Viscount Simon: My Lords, in calling Amendment No. 30, I must advise your Lordships that if it is agreed to, I cannot call Amendment No. 31 due to pre-emption.

Lord Avebury: moved Amendment No. 30:
	Page 21, line 42, leave out subsection (5).

Lord Avebury: My Lords, we have a profound aversion to Clause 40, as the noble Baroness knows, because it allows powers of detention and search and the use of reasonable force for these purposes to be exercised by private contractors. We have particular concerns about the use that may be made of these powers in the juxtaposed jurisdictions in France. There is no objection to private contractors examining lorries or containers to ascertain whether there are illegal entrants or contraband as they already do, but we think that the powers of arrest, detention and search ought to be conferred on only police, customs and immigration officers who are fully trained in those duties and operate under strict codes of conduct. Unfortunately, that principle has already been breached by the appointment of detainee custody officers under Section 154 of the 1999 Act. As we noted in Grand Committee, they merely look after persons who have already been detained by an immigration officer; they do not have any powers of arrest or search.
	The Minister referred to the work that these private contractors will be required to do as often simple and mundane operations. No doubt she meant conducting a preliminary search of a ship, an aircraft or a vehicle and finding no evidence of illegality, as I suppose will be the case in 90 per cent of the operations. However in 1 per cent of searches, where the contractor's employee has reason to believe that there is an illegal entrant present, perhaps by virtue of an infrared scan or electronic detection signal, he should call an immigration officer or police officer immediately and an officer should always be on hand nearby for that purpose.
	That must have been already happening since August 2000, when, so the Minister told us, the Immigration Service has been working with private contractors in the freight lanes berthside in Calais, with huge success. If the collaboration is working so well, why are these extra powers needed? Clearly there must be immigration officers nearby in the freight lanes at Calais who can be called to arrest, detain and search an illegal entrant. Clause 40 envisages that they will be somewhere off-site, or even off duty, but within a three-hour journey of the site. The Minister could not explain why the three-hour upper limit was necessary, when the Immigration Service has the duty of supervising the contractors, which ordinary people would assume to mean that there would always be officers on-site.
	As the Minister is aware, there is particular concern about how these arrangements will work in the ports where there are juxtaposed controls. The contractors there will be French companies, operating under French law and employing French contractors. These employees would, for instance, be subject to whatever checks there are in France to prevent sex offenders being employed in jobs involving children. We cannot even get our own checks right, so how are we to be assured that French safeguards are watertight? The Minister said, in response to my noble friend Lord Dholakia, that she would enquire about the extent to which the French system mirrors our Criminal Records Bureau and sex offenders' records, and that she would report back to us. I hope that we may hear something from the Minister on those matters this evening.
	The Minister talked about the duties of the Kent social services, in whose care children arriving at Dover are placed, she said, almost immediately. Will the Calais social services have equivalent responsibilities? What happens to unaccompanied children picked up at Calais under our present system?
	The Children's Commissioner and the Chief Inspector of Prisons both told Sub-Committee F last week that they have the right to inspect and report on arrangements for detention at the juxtaposed controls ports. It would be useful to know what the Children's Commissioner said about this when the Minister consulted him, as she undertook to do in Grand Committee. Whatever he or the chief inspector may say about these arrangements, it cannot be denied that accountability is being watered down. The contractors are not British citizens and, in the extreme case of criminal misconduct, their employees would be dealt with in the French courts. If it was felt that any law needed to be amended in light of such a case, we would have no power to secure that change, except through representation by the FCO to the French authorities. This Parliament would be outside the loop.
	As to the qualifications of staff for dealing with vulnerable people in general, and children in particular, the Minister in effect said that their skills would be of a lower order than those needed by immigration officials. That is a further reason for concern. As with most legislation nowadays, all we have to go on at this point are the broad headings to be covered. The Minister said that contractors would have to submit detailed procedures for handling vulnerable groups; presumably this would also cover such matters as the syllabus and training programme for employees carrying out these duties. Could we have an undertaking that all the documentation provided by the contractor will be in the public domain? This is clearly essential if any comments made by the Children's Commissioner or the chief inspector on their proposals are to make sense.
	In Grand Committee we asked under what code of conduct contractors' staff will be working. As the Minister made no comment on the matter in her reply, I shall try again. As we understand it, private contractors will be obliged to work to PACE when they search or question a person, but there is no code of conduct in force when they are arresting or detaining someone. I hope that that is wrong and that the Minister can assure me that PACE operates throughout the whole process, as it does when the professionals are doing it.
	Unfortunately, there is another difference between immigration officers and private contractors which is of material importance. Clause 38 of the Police and Justice Bill makes immigration officers exercising enforcement powers subject to the Independent Police Complaints Commission, on top of their answerability to the IND's internal complaints procedure, itself subject to independent audit. In evidence to the Home Affairs Committee the chair of the audit committee said that some 200 complaints of serious misconduct, mostly assault, were received annually, and even those were not being dealt with satisfactorily, because no statistics were kept to show what happened after they were referred to the police. Presumably very few complaints of criminal misconduct get to the courts, or even to the CPS, because the alleged victim is no longer here to give evidence. That could be dangerous, because it could create an atmosphere of impunity around the whole process, making it likely that the force used against detainees would not always be reasonable. With none of the safeguards provided where the complaint is against a professional provided, and even more so when it is in a foreign jurisdiction, is not the employment of private contractors a recipe for the ill treatment of detainees? To whom will a detainee complain about the conduct of a private contractor's employee and how can he ever hope to obtain justice? I beg to move.

Baroness Turner of Camden: My Lords, my name is to these amendments and I spoke on Clauses 40 and 41 in Grand Committee. At that time I was speaking on a brief supplied by the Public and Commercial Services Union, the union to which immigration officers belong. They are concerned about the provisions in the clauses for part of the services their members now provide to be contracted out to private operators. Obviously, they are worried about what they see as a threat to their jobs. Contractors currently operating under arrangements with France are paid less than the UK Immigration Service staff, with no access to pension provision and no career prospects—at least, so I am told. The union is also concerned about maintaining the professional and security standards which apply to their members.
	I raised some of these issues in Grand Committee. Since then I have received further briefing, this time from the Immigration Law Practitioners' Association. It points out that Clause 40 would allow the contracting out of powers to search and detain for up to three hours at ports to other authorised persons—i.e. to private contractors. The contractors would be used to seek out and to detect people hidden in vehicles, and to expose and arrest them.
	It is generally accepted that extremely difficult conditions can arise when desperate and vulnerable people, who may include children, are detected. The Minister said the Government intended that contracting out would relieve immigration officers of what she termed "mundane work". The Immigration Law Practitioners' Association points out that while it may be mundane to walk alongside vehicles looking for people, it is anything but mundane to find them. This is where experience and professionalism become all-important, and that is particularly true where children are involved.
	The Government have not fully explained why contracting out is necessary. I hope it is not thought that it will be cheaper to use less well-paid people and that is why the Government want to proceed down that path. That does not seem acceptable to me and I hope the Government will look at this again. Indeed, experience of contracting out in the public sector has not always been good. The Institute of Employment Relations, of which I am a member, has recently published research into what it calls the impact of contracting out on employment relations in public services. The experience, quite clearly, is not uniformly good. Accountability, as they say, is impaired as responsibility is shed—the point that has just been made by the noble Lord, Lord Avebury. Can the Minister explain why it is necessary to go down this path, to contract out the work of highly skilled, professional and well-trained people—people, moreover, who are subject to a very rigorous security check? I think, in the present circumstances, that that is of utmost importance and I support the amendments.

The Earl of Listowel: My Lords, I also support these amendments. I have an amendment in this group—Amendment No. 35, which would delete Clauses 40 and 41. I go slightly beyond the concerns of other speakers in that I am also concerned about extending these powers to customs and police officers. This is important work because it relates to vulnerable children arriving in this country. Over a period, immigration officers have developed considerable expertise and we all need reassurance that that will not be lost.
	Let us consider the journey of a child coming to this country in these circumstances. Sometimes they do not know what country they have arrived in. Sometimes their trafficker will tell them that the alien officials are villains and are cruel and unkind and they should be avoided. Their experience of officials in their own country may be very unhappy. I will give the example of a young man from Afghanistan whom I will call Abdul. All his immediate family were killed when he was aged 11. He spent four years travelling in Pakistan and at the age of 15 he arrived in Nottingham in a lorry with his uncle. He was very disoriented and unwell. He is the kind of person these officers may come across. We must be sure that they are well equipped to act with compassion, consideration and understanding in these circumstances.
	The Minister is likening this reform to that which has occurred in teaching and other areas. In teaching, less qualified individuals are allowed to do the more mundane work so that the full expertise of the teacher is used more effectively and efficiently. My understanding is akin to that of the noble Lord, Lord Avebury. Already it is possible to farm out the less sophisticated work to individuals, not immigration officers. When, for instance, a heartbeat is found in a lorry, that less qualified person goes to the immigration officer and says, "Look, there is somebody in there. We need you to come in and detain, search and hold this person". The expertise appears already to be used most effectively and therefore I do not see why this provision is necessary.
	If the Minister wishes to persevere with this reform, I should be grateful if she could give a number of reassurances. It would be helpful if these new officers came under Section 11 of the Children Act 2004, which puts a duty on authorities to proceed with regard to the promotion of the well-being of children. If every individual had an enhanced Criminal Record Bureau check before they started work, that would be helpful. If they had a certificated qualification in the handling of children, that would be a reassurance. If the local safeguarding children board was alerted immediately these children were found and there was an approach to a child protection officer, that would be helpful. If the Minister will continue to ensure that the Children's Commissioner is fully consulted on the importance of this reform, that would be helpful. A report from the senior immigration officer at the scene within 24 hours of a child being found would be helpful. Finally, perhaps the Minister would write to me on how the monitors who will supervise the contracts will be equipped to judge whether contractors are doing a good and sensitive job when it comes to managing children.
	The noble Lord, Lord Avebury, highlighted concerns about accountability on two grounds. First, at the juxtaposed controls, which authority is responsible for these children? Secondly, which contractors hold the main responsibility? Clarification on who would be accountable for these children at the juxtaposed controls is necessary and I hope that the Minister can provide that. I look forward to her response.

Baroness Ashton of Upholland: My Lords, I am grateful to noble Lords for covering many issues on the important point of ensuring that we contract out appropriately. Noble Lords have moved for deletion of the clauses, but I am taking many of the comments to be on ensuring that the system we are designing is fit for purpose. It ranges from the continuing desire of the noble Earl, Lord Listowel, to ensure that children are properly safeguarded to ensuring that the current workforce is not displaced or ill-treated, as expressed by my noble friend Lady Turner. There is also the general principle of ensuring that the system is robust and uses people appropriately.
	I will try to deal with some of the issues that have been raised rather than read the text of my brief. The concerns are specific. I take the point about the mundane tasks turning into something less than mundane. However, the search activities are straightforward. If someone is found, we want to ensure that the people carrying out the searches are able to deal with the individual. As the noble Earl, Lord Listowel, will recognise, some of the young people in such circumstances could be extremely vulnerable.
	As I hope I spelt out well in Committee, we want to ensure that contractors have the proper safeguards in place, that they train their staff appropriately, that it is an individually based contract and so forth. The powers of the contractors are set out in Clause 40(7) and they are deliberately limited. I know that there is an issue surrounding the three-hour time limit because I have discussed the matter with some of our stakeholders in the past couple of days. When dealing with legislation, one tries to ensure that one has captured the widest spectrum of possible need. In this case, we want to ensure that we can hang on to people so that we can hand them over properly. However, when I have discussed the matter with officials, the expectation has always been that you would hand them over very quickly—much more quickly than three hours. The three hours is a maximum limit and the critical point in legislation is to be clear about the maximum limit.
	We would expect that to be extremely rare. However, it is possible—not because immigration officers are off-site having a cup of tea or whatever—that it may be extended. Let us say that, for example, a number of people have been found, that the officers are trying to move from person to person, and that other incidents may have taken place. There could be a range of circumstances in which that maximum of three hours is important, but it is there as a safeguard and we would expect it to be exceeded only in extremely rare circumstances. The current pilot schemes are different because the private contractors work only alongside immigration officers. Here we are setting up something different, which is why we have set it out this way and have been clear about the maximum time.
	I understand noble Lords' need to ensure that the contractors are properly trained. They will have to provide the Immigration Service and the appointed monitors with access to the course material and the opportunity to attend the training they provide to ensure that there is high quality. I am happy to make that training document available to noble Lords, if they would find it of value. There is no difficulty with that whatever.
	Furthermore, the French police will check all those who are to work in the Calais port area, regardless of the nationality of the employee. All persons will be checked for the existence of a criminal record in France. These records contain all charges or other issues around sex offences.
	My noble friend Lady Turner has been particularly concerned about the PCS and has reiterated it. My honourable friend Tony McNulty and senior managers of the Immigration Service have held meetings with the PCS. There is no intention to replace warranted staff with contractors. I put it this way: there will be no redundancies. Perhaps that will reassure my noble friend Lady Turner more completely than anything else I might say.
	The noble Lord, Lord Avebury, was rightly concerned that those who had a complaint would need to know to whom they could complain. At the time, they can complain to the Immigration Service officer in charge, the chief immigration officer, who will be required to refer the matter to the monitor.
	The noble Lord asked about PACE. We discussed this matter in correspondence. As the noble Lord knows, the application of PACE is neither a legal requirement nor, we believe, appropriate and there will be no alternative code. But the contractors will be provided with detailed operational instructions which in some respects will mirror a number of the requirements of the Police and Criminal Evidence Act. For instance, all those detected will be advised in writing of the reason for their detention and the purpose of any search undertaken. Records will be kept. There will be significant safeguards within the proposed layers of scrutiny to ensure that those searching abide by the operational instructions provided by the Immigration Service. Because essentially the provisions of PACE are intended to protect the rights of those under investigation and facing arrest, the noble Lord will recognise that there are different circumstances, but I hope that I have given some assurances.
	The noble Earl, Lord Listowel, rightly focuses on the general question of children. I have talked with the noble Earl on a number of occasions. I accept that any child found in these circumstances will be among the most vulnerable we may ever find—a child who speaks no English and may not know where he is or why he is here and so on. I sought to spell this out in Committee. It is important that those who detain the child do so appropriately and properly. I have had good discussions with the Refugee Children's Consortium, with which we shall continue to work to ensure that the provision is right.
	If a heartbeat is detected, I want those persons to move swiftly because that child could also be in trouble. There have been too many tragedies. It is not about getting somebody else to come in. I would want the people finding the heartbeat of the child or the adult to move swiftly to ensure that we got him out and that we held on to him. The noble Earl and I, and the Refugee Children's Consortium, discussed ensuring that people are properly trained to hold on to young people in particular. They might run away because they do not know where they are and what is happening. It is important that they are held on to for their own safety. We are in discussions with the Children's Commissioner. My ministerial colleagues have not yet met with the Children's Commissioner, although that is no more than a diary issue. The meeting is being arranged and we await the outcome. I shall let the noble Lord, Lord Avebury, and the noble Earl, Lord Listowel, know about it. The Foreign Office has found the French equivalent—Défenseur des Enfants—and we seek to make contact in order to raise equivalent concerns with our French counterpart on those issues.

Lord Avebury: My Lords, will the Minister confirm that, as the Children's Commissioner and the Chief Inspector of Prisons both told Sub-Committee F last week, they have complete freedom of access to the juxtaposed controls any time they please?

Baroness Ashton of Upholland: My Lords, indeed if that is what they said, that must be right. I sought to deal with the specific point about the Children's Commissioner. I referred to the meetings that we need to have for these issues to be discussed with my honourable friend Mr McNulty and officials. I undertook to ensure that that occurred. It is in the process of being organised.
	In Committee, noble Lords were concerned to know whether there was a French equivalent and whether we were able to make appropriate contact. We are in the process of doing that. I hope that that reassures noble Lords.
	I shall write to the noble Earl on the question of the monitor. We shall discuss Section 11 of the Children Act later, so I shall not speak about it now, although I remember it well because I took the Bill through your Lordships' House. We shall discuss important issues about the primary focus of the work being undertaken, and not seeking to conflict with that.
	I am confident that it is appropriate to subcontract particular responsibilities. We need to use resources, especially people, effectively and properly within training and contract regimes that are as transparent as possible within commercial confidentiality. The issues relating to children need to be addressed. We have done that in an appropriate way with the French and the English commissioner. We recognise the importance of staff being protected. No redundancies is about as good as it gets in these circumstances. We have to create a proper system which enables people to do their jobs efficiently. The three hours should be seen in the context of the maximum amount of time and not the norm. That is not the intention underlying this part of the Bill. On that basis, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Avebury: My Lords, I am grateful to the Minister for her careful and considered reply, and for her assurance that the contractors' documents concerning the training of the officers who will be employed on these duties will be placed in the public domain.
	The Minister also spoke about the detailed operational requirements which are the equivalent of PACE, although not exactly the same because of the different circumstances that apply to the duties which officers have to perform under the provisions. I say en passant that the duties they perform in arresting and holding suspected illegal immigrants are very similar to those that the police perform in arresting criminal suspects. Will the noble Baroness write to confirm that detailed operational requirements that are the equivalent of PACE will also be in the public domain? Will they be in accordance with the provisions of the rules which already prescribe a code of conduct for immigration officers in these circumstances? When the Minister replies, it would be useful if she could cover that point also.

Baroness Ashton of Upholland: My Lords, I have replied. I shall write.

Lord Avebury: My Lords, I thank the noble Baroness. That is a useful assurance. The codes of conduct are of material importance to those of us who are anxious about the employment of private contractors generally. It is not simply about incorporating adequate safeguards into the system. Some of us go further: we dislike the notion of employing contractors in these duties because of the risks deployed, as every noble Lord who has spoken has said, in particular the noble Earl, Lord Listowel, with his immense experience of children's issues.
	We are pleased to hear that there is an equivalent of the Children's Commissioner in France. It is remarkable that we had to wait until Report before discovering such an essential fact. The existence of such a person, and the liaison between our own Children's Commissioner and his opposite number in France, are not the whole answer to the objections that we have raised. We are still anxious that vulnerable people—in particular children—can be in the custody of officials who are subject to only the remotest of controls via the immigration officers at the ports concerned and, through them, to the authorities in this country. It is one removed from the supervision and monitoring that we exercise over, for example, the immigration detention centres in this country, which any noble Lord can inspect and the Chief Inspector of Prisons inspects regularly. We think that it will be more difficult for such oversight to be exercised in the juxtaposed controls. The existence of the private contractors adds an element of risk which does not exist elsewhere.
	I am sure that we shall return to the subject at Third Reading. In the expectation that we shall have learnt more about the process in the meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 31 to 35 not moved.]
	Clause 41 [Section 40: supplemental]:
	[Amendments Nos. 36 and 37 not moved.]
	Clause 42 [Information: embarking passengers]:

Lord Dholakia: moved Amendment No. 38:
	Page 24, line 32, at end insert "and shall have the right to contact a legal representative and his embassy or high commission at any time during that period"

Lord Dholakia: My Lords, the amendment deals with what is appropriate in an arrest or a detention. The clause, although it now sits in the "Information" part of the Bill, was introduced with other amendments on terrorism, which are now Clauses 7, 51 to 55. It provides new powers to detain embarking passengers who are not British citizens for up to 12 hours and to establish the person's identity, compliance with conditions of leave and whether return to the UK is prohibited or restricted. It also applies to all non-British citizens who are embarking passengers, not just those considered to pose a national security risk.
	We have tabled the amendment because of a discussion that took place in the other place involving Mrs Gillan, who asked the Minister whether he would comment on the individual's ability to contact a legal adviser, or his embassy or High Commission, during the period of detention. Mr McNulty replied:
	"Before the 12 hours are up, there will be no right to legal representation and none of the other rights afforded by PACE. It is not an arrest for a criminal offence. It is detention under the administrative powers of immigration legislation. If it goes beyond 12 hours, the legal rights and powers under PACE will kick in, but not before".
	The Minister also sought to justify this clause on the basis that it was better to have power to detain an embarking passenger than to arrest him. I quote again:
	"Currently, we are able to take all that information from someone only if they are arrested. Clearly, we do not want to arrest everybody . . . In that regard, having the facility, which is all that the two new clauses propose, to establish beyond doubt a person's identity as they are leaving and to take a record of that by biometrics is a more than appropriate halfway house".—[Official Report, Commons Standing Committee E, 27/10/05; cols. 308-10.]
	The point that I make is that arrest is unpleasant but it carries legal safeguards on the right for representation. The clause envisages continuous detention for up to 12 hours. It is unlikely that anyone would realise that the embarking passenger was being detained. They would not be allowed to tell anyone unless the clause is amended.
	Many other countries follow the type of legislation that we enact in this country. I would hate to think of somebody being detained for up to 12 hours for no reason other than to seek information and at the same time being denied any right of representation whatever. In that respect, I beg to move.

Baroness Ashton of Upholland: My Lords, the purpose of holding somebody is—if you like, it is an administrative detention—to establish their identity, nationality and/or immigration status. The vast majority of people, therefore—we are back to maximum times—will be held for much shorter lengths of time than 12 hours. Twelve hours, as I have indicated, is a maximum. At present, those detained on arrival under paragraph 16(1) or (1A) of Schedule 2 to the Immigration Act 1971 have access to telephone facilities once they are taken to the holding facilities in the port. The treatment of embarking passengers detained under the new limited power will mirror those existing powers, so people will have access to telephones during that time if they are transferred.
	As I have indicated, in practice, the detention will be kept to the shortest possible period necessary to satisfactorily establish the person's identity and/or immigration status, after which the person would be released. If the examination reveals grounds sufficient to justify the arrest of the passenger for a criminal offence, he will be arrested and transferred to police custody where, as the noble Lord, Lord Dholakia, has indicated, the usual PACE safeguards will apply.
	My argument is that the amendment is not necessary. The circumstances that we are describing, with access to phones, a minimum time—we have also put a maximum amount of time—and the fact that this is an administrative detention to establish who the person is are appropriate. Normally I accept the point that one wishes to give access as quickly as possible, and we think that 12 hours is right. I hope on that basis that the noble Lord is able to withdraw the amendment.

Lord Dholakia: My Lords, I thank the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 43 [Accommodation]:

Baroness Ashton of Upholland: moved Amendment No. 39:
	Page 25, line 24, at end insert—
	"(7) At the end of section 4 of the Immigration and Asylum Act 1999 (c. 33) (accommodation) add—
	"(10) The Secretary of State may make regulations permitting a person who is provided with accommodation under this section to be supplied also with services or facilities of a specified kind.
	(11) Regulations under subsection (10)—
	(a) may, in particular, permit a person to be supplied with a voucher which may be exchanged for goods or services,
	(b) may not permit a person to be supplied with money,
	(c) may restrict the extent or value of services or facilities to be provided, and
	(d) may confer a discretion.""

Baroness Ashton of Upholland: My Lords, in moving Amendment No. 39, I would like to speak to Amendment No. 43. The amendment to Clause 43 will enable the Secretary of State to make regulations to provide for additional needs to be met for those in receipt of support under Section 4 of the Immigration and Asylum Act 1999. The provisions will ensure flexibility, both now and in the future, to meet essential needs not directly connected with the provision of accommodation. Such needs might include, for example, travel to essential appointments and essential supplies for new mothers, such as baby clothes.
	Section 4 support is currently provided for, in the main, failed asylum seekers who are temporarily prevented through no fault of their own from leaving the UK. If the amendment is accepted, regulations will be drawn up to enable NASS to provide services or facilities to overcome these difficulties. Essential needs will be met by non-cash means. That is important, as Section 4 provides a limited form of support for those about to leave the United Kingdom. While meeting essential needs, the support should not act as an incentive for people to remain in the UK once they have exhausted their appeal rights. I hope that that explains what Amendment No. 39 seeks to do.
	On Amendment No. 43, the Government have considered the views of the Delegated Powers and Regulatory Reform Committee about the powers in Clause 48(2). These were that by exercising a power administratively, as in requiring applicants to follow particular procedure, the Government will be doing away with parliamentary scrutiny of the procedure. The Government accept the point and seek to introduce the amended Clause 48 so that any mandatory procedures required of applicants will be set out in the immigration rules. We still wish to set out administrative details, such as what information and documents are required, and to be able to change this easily, where necessary. I hope that this amendment will meet the concerns of the Delegated Powers and Regulatory Reform Committee. I beg to move.

Baroness Carnegy of Lour: My Lords—

Lord Avebury: moved, as an amendment to Amendment No. 39, Amendnment No. 40:
	Line 10, leave out "not".

Lord Avebury: My Lords, I am sorry to interrupt the noble Baroness. I hope she will have an opportunity of speaking later. I begin by saying that this clause, as the Minister has explained, allows local authorities to provide accommodation to failed asylum seekers in accordance with arrangements that have been made by the Secretary of State. The amendments now before your Lordships extend this to the provision of vouchers for people receiving this accommodation. As the honourable Member for Walthamstow observed in another place, people supported under Section 4 used to be given cash, but then luncheon vouchers were provided instead. That caused all the problems that were encountered with the former hated voucher system.
	This change was as a result of legal advice obtained by NASS in March 2005, which, as far as I know, has not been seen by anybody else—at least, that was the position at the end of May 2005, when Refugee Action and Citizens Advice obtained advice from Doughty Street Chambers on the extent of the powers under Section 4. This opinion stated that there was no express prohibition in Section 4 against making cash payments and that the arguments that cash payments would allow the recipient to obtain items outside the scope of Section 4 was invalid because people could sell the vouchers and spend the cash on whatever they wanted, as indeed they do and have always done.
	As Citizens Advice has pointed out, giving vouchers that can be used only for food and drink has a number of major disadvantages. The recipient cannot get everyday essentials, such as clothes, baby items and toiletries. He cannot use public transport, even for essential journeys that are necessary to comply with reporting conditions. He cannot buy food other than from designated retailers, which may not be local to the accommodation supplied. He cannot attend medical appointments and so on. He may not be able to buy culturally appropriate food, such as halal meat, or to conform to medically prescribed dietary requirements. He will not have access to basic medication, since those on Section 4 support are not entitled to free NHS care. Finally, there is a flourishing black market in vouchers, with criminal profiteers buying them—usually at 50 per cent of their face value—in return for cash.
	Last month, there were 5,000 failed asylum seekers of 70 different nationalities on Section 4 support. In spite of Home Office efforts to open a route of return to Iraq and so reduce the number of Iraqis on such support, there were still more than 3,300 on 9 January. Following legal challenges, the Section 4 scheme is developing from a small-scale, short-term support system to a large-scale, long-term one. Many individuals have now been on Section 4 support for a great many months; Citizens Advice knows of one Congolese woman who has been on it for two years, while many Iraqis have been on it since early 2005. The number of applications for Section 4 support rose from 3,000 in 2004 to 15,000 in 2005 and, since June last year, two thirds of the appeals to the asylum support adjudicators have been in relation to refusal of that support.
	We were therefore disappointed that the Government, having said that they would consider the representations by the honourable Member for Walthamstow—who is, after all, chair of the All-Party Parliamentary Group on Refugees and has considerable expertise in the subject—and having conceded that NASS's legal advice may have been wrong, decided to return to the abominable voucher system. That is a deplorable return to the past, and I hope that we shall give another place a chance to think again about what the Home Office is doing.

Baroness Carnegy of Lour: My Lords, I rise in relation to Amendment No. 43, which the noble Baroness explained was tabled in response to the Delegated Powers and Regulatory Reform Committee recommendation. I saw in the Government response that they were going to table this amendment. I notice that the immigration law practitioners doubt whether the amendment has the effect that the Government intend. I will not go into details, but has the Minister looked at the point which the law practitioners raised? Is the amendment, in fact, secure? I am sure that they are right to be doing this but—the point having been raised—we should make quite sure that the amendment is foolproof.

Lord Hylton: My Lords, I want to warmly welcome the government amendment since it will much relieve the burdens currently falling on local authorities, voluntary bodies and churches. I think that it is also a response to the amendment moved in Committee by my noble friend Lord Listowel; I hope that I am right in that. However, I agree strongly with the amendment moved to Amendment No. 39 by the noble Lord, Lord Avebury. He made an extremely strong case.

The Earl of Listowel: My Lords, I welcome the principle behind what the Minister has said. I had not intended to speak in this debate but, as I understand it, the intention in what the noble Baroness proposes is to ensure that mothers who, for instance, currently lack the ability to buy milk or other provisions for their baby will have that provision. I welcome that aspect; however, I am concerned at the dependence on the use of vouchers.
	An example of the difficulties that can arise is a case history where vouchers were initially being provided in the form of luncheon vouchers. The supermarket Tesco, in which people were intending to exchange their vouchers, was unwilling to provide them with anything other than food items. They had attended more than one Tesco store and had tried complaining. Disturbingly, the women were refused essential items such as baby milk and powder, clothes, including baby clothes, nappies, shampoo, washing powder and sanitary towels. I am sure that these vouchers that the Minister proposes will avoid that sort of problem. Yet there do seem to have been technical problems in the past which have caused worry to families.
	I am particularly worried about families being identified, when they are paying at checkouts, as being asylum-seeking families or failed ones, given the great ill-will that sadly exists toward those families among many members of the public—especially in some of our poorer and more deprived areas—and the experience of those children standing in that queue and being aware of how many adults around them are regarding them. I think that the Minister understands my concern.

Baroness Ashton of Upholland: My Lords, I am not sure if my amendment is being welcomed. We have checked the point about delegated powers which the noble Baroness, Lady Carnegy of Lour, raised, and it is fine. If I discover anything untoward I will of course ensure that I put it right. Parliamentary counsel, in whom I have enormous faith, are very good at ensuring that we have done that, but I will make sure that we check what ILPA said. I am grateful to the noble Baroness for raising that.
	The noble Lord, Lord Avebury, will not be at all surprised that I will obviously resist Amendment No. 40. I will be doing that because our amendment recognises that we need to do more. I hope that those noble Lords who have welcomed it will understand that we see the obligations that we have and want to fulfil, but do not want to do so by providing cash.
	In a sense, we do not want to invite people to draw on the public purse if they do not need to; more importantly, nor do we want to reduce the incentive for people to take steps to leave the UK voluntarily. Whether your Lordships like the consequence of what I am saying or not, it is crystal clear that that could be a consequence if we provided cash. We are trying to meet people's needs in a way which does not increase the incentive for those people who have exhausted all of their appeal rights. We want to ensure that they are able to leave the UK once the barrier to leaving has been resolved. That is the principle behind it.
	The noble Lord, Lord Avebury, indicated that there may be an issue about getting health treatment. They are provided with that health treatment which is immediately necessary free of charge under primary care. Under secondary care they can receive a number of services free of charge. To ensure that we have dealt with issues of accessing primary and secondary care we are at present considering, with colleagues from the Department of Health, the eligibility for failed asylum seekers for whom there is a temporary barrier to leaving the UK. I shall come back to your Lordships on that, but there is access to care; I would not want our deliberations to suggest otherwise. We need to think about it more carefully in the light of what the noble Lord has said, and more generally in any event.
	I am sorry to resist the amendment but I do so on the right grounds and I hope that my amendments, though not meeting the needs which the noble Lord wished, are none the less recognised for having an important part in providing support.

Lord Avebury: My Lords, I am most grateful to the Minister for saying that these people will, at least, receive free both primary and secondary care. I hope that that will include free prescriptions, since that is an essential element of the care that a general practitioner gives to a patient. He signs a prescription; they take it along to a chemist and, if they have no money, then they must be of a class that would be exempted. That would be a useful concession, because one item which they currently have to buy out of their non-existent money is medication. It is a serious matter if you cannot even buy aspirin to take care of yourself and your family.
	With great respect to the Minister, she has not really addressed the nub of the problems which we all know exist with the voucher scheme. We ought to have known better than to reintroduce it after our prior experience of it. We have heard from the noble Earl, Lord Listowel, the noble Lord, Lord Hylton, and the NGOs who are doubtless advising the department that it is a mistake. However, I can see that we will get no further on Report with cancelling the voucher scheme. I shall have to withdraw my amendment and hope to come back to it at some later stage, if we can exert the kind of pressure which the NGOs believe should be brought to bear on the Government on that issue. Meanwhile, I beg leave to withdraw the amendment.

Amendment No. 40, as an amendment to Amendment No. 39, by leave, withdrawn.
	Amendment No. 39 agreed to.

Lord Avebury: moved Amendment No. 41:
	After Clause 43, insert the following new clause—
	"FAILED ASYLUM-SEEKERS: WITHDRAWAL OF SUPPORT
	(1) The Secretary of State may by order provide for paragraph 7A of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (c. 41) (failed asylum-seeker with family: withdrawal of support) to cease to have effect.
	(2) An order under subsection (1) shall also provide for the following to cease to have effect—
	(a) section 9(1), (2) and (4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) (which insert paragraph 7A of Schedule 3 and make consequential provision), and (b) in section 9(3)(a) and (b) of that Act, the words "other than paragraph 7A".
	(3) An order under subsection (1)—
	(a) may include transitional provision,
	(b) shall be made by statutory instrument, and
	(c) shall be subject to annulment in pursuance of a resolution of either House of Parliament."

Lord Avebury: My Lords, as your Lordships will recall, Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 created a new category of people in Schedule 3 to the NIA Act 2002—"failed asylum-seeker with family"—and established conditions under which such persons would become ineligible for financial and material support of any kind, including social welfare provisions such as the Children Act 1989 and its equivalents in Scotland and Northern Ireland. If persons in that category do not take "reasonable steps" to leave the UK, the Secretary of State may issue a certificate stating that they have failed to do so without reasonable excuse. Support is then withdrawn from adult numbers of the family, unless that would lead to a breach of the Human Rights Act.
	The Government's argument for making those families destitute was that it would encourage them to leave "voluntarily" once their case had been finally decided. We opposed that clause when the Bill came before us and agreed with many in children's and human rights NGOs who argued that its implementation would lead to breaches of the UN Convention on the Rights of the Child. Wisely, the Government decided that, before rolling out the proposal nationally, they would test it in three areas: central and east London, Greater Manchester and West Yorkshire and, in those areas, on 116 specified families.
	In a study by Barnardo's, the local authorities concerned said that Section 9 was wholly incompatible with the Children Act and some feared that it would damage the welfare principle and child-centred practice more generally. Ms Nancy Kelly, head of international and UK policy at the Refugee Council, giving evidence before Sub-Committee F of your Lordships' European Union Select Committee on 25 January stated that the pilots had caused:
	"enormous distress and terrible destitution".
	She said that one-third of the families studied had been wrongly allocated because they still had rights of appeal. In other words, those families had been unlawfully deprived of support. Inevitably, that would happen on a far larger scale across the country if Section 9 were rolled out everywhere.
	One woman in the survey attempted to commit suicide three times and many people had significant mental health problems. Ms Kelly said that there was a low risk of absconding while those families were being supported, but that some of them vanished under threat of being separated from their children.
	Subsection (1) of the new clause contains the power to make an order repealing the relevant provision in the 2002 Act inserted there by Section 9 of the 2004 Act. Subsection (2) refers to Section 9(1), (2) and (4) of the Asylum and Immigration Act 2004. Section 9 included a fifth class of persons ineligible for support under Schedule 3 to the Nationality, Immigration and Asylum 2002—a failed asylum seeker with family. It also gave those families a right of appeal to the asylum support adjudicator under Section 103 of the Asylum and Immigration Act 1999, while removing the right of appeal under Section 103 for other classes of persons listed as ineligible for support under Schedule 3. In repealing parts of Section 9, we are not restoring a right of appeal to those other classes. Subsection (3) provides that the order will be subject to the negative resolution procedure.
	Section 9 is an inhumane way to coerce vulnerable families. Under the new clause, if the pilots led to the conclusion that other ways to persuade failed asylum seekers to return home, such as the £2,000 grant mentioned by the Minister, should be tried, the Secretary of State would have power by order to repeal the provisions of Section 9 relating to failed asylum seekers with families. I am most grateful to the Minister not only for accepting that idea when we suggested it in conversation after Grand Committee but for her invaluable assistance in drafting the new clause. I hope that that is a signal of the Government's recognition that Section 9 may have to be abandoned and that, when the result of the pilots is published, they will not be afraid to admit that they were wrong to proceed down that road. I beg to move.

Baroness Ashton of Upholland: My Lords, the noble Lord, Lord Avebury, hinted at my response to the amendment, but I want to place it in the context that the Government take very seriously the matter of ensuring that people who have exhausted the process recognise that we expect them to go. There is sometimes a dilemma in ensuring that that happens—voluntarily where possible; that is the most appropriate method. I argue, as the noble Lord has heard me argue before, that, in the interests of children, it is better for people to leave and look after their children in another place and get them settled, to find their own communities, and so on. I do not believe that it is right for people to remain when they should not or that that is in the interests of children.
	I accept that there is toughness about this policy. In part, it is about sending a really clear signal that people who are refused asylum must go home. That is why we decided to include this in the Bill and, as the noble Lord mentioned, to pilot it. It is being evaluated in conjunction with the Department for Education and Skills, the Office of the Deputy Prime Minister, the pilot local authorities and voluntary organisations before any decision is made on a national roll-out. That will include exploring other options that could encourage failed asylum seeker families to take the steps that they really ought to take to leave the UK.
	Further implementation of the provisions of Section 9 will depend on the outcome of the evaluation and no decision has yet been taken. Since the introduction of Section 9, there have been a number of developments on the management of asylum applications and assisted involuntary returns. The new asylum model process is intended to deliver faster outcomes, resulting in improved chances of a speedy removal. By putting the case-owners closer to the claimants, the IND will be able to manage both the case and the claimants more effectively. Enhancements to the assisted voluntary returns system are expected to result in greater uptake of that avenue of departure.
	It is within that context that I am pleased to accept the amendment.

Lord Avebury: We greatly look forward to hearing the results of the pilots, when they are revealed, and to the development of the alternative methods of persuading people to return voluntarily, which the Minister explained. I am again very grateful to her for all her help in drafting the new clause.

On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendment No. 42:
	After Clause 45, insert the following new clause—
	"REMOVAL: PERSONS WITH STATUTORILY EXTENDED LEAVE
	(1) Where a person's leave to enter or remain in the United Kingdom is extended by section 3C(2)(b) or 3D(2)(a) of the Immigration Act 1971 (c. 77) (extension pending appeal), the Secretary of State may decide that the person is to be removed from the United Kingdom, in accordance with directions to be given by an immigration officer if and when the leave ends.
	(2) Directions under this section may impose any requirements of a kind prescribed for the purpose of section 10 of the Immigration and Asylum Act 1999 (c. 33) (removal of persons unlawfully in United Kingdom).
	(3) In relation to directions under this section, paragraphs 10, 11, 16 to 18, 21 and 22 to 24 of Schedule 2 to the Immigration Act 1971 (administrative provisions as to control of entry) apply as they apply in relation to directions under paragraph 8 of that Schedule.
	(4) The costs of complying with a direction given under this section (so far as reasonably incurred) must be met by the Secretary of State.
	(5) A person shall not be liable to removal from the United Kingdom under this section at a time when section 7(1)(b) of the Immigration Act 1971 (Commonwealth and Irish citizens ordinarily resident in United Kingdom) would prevent a decision to deport him.
	(6) In section 82(2) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (right of appeal: general) after paragraph (h) insert—
	"(ha) a decision that a person is to be removed from the United Kingdom by way of directions under section (Removal: persons with statutorily extended leave) of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave),".
	(7) In section 92(2) of that Act (appeal from within United Kingdom) after "(f)" insert ", (ha)".
	(8) In section 94(1A) of that Act (appeal from within United Kingdom: unfounded claim) for "or (e)" substitute "(e) or (ha)"."
	On Question, amendment agreed to.
	Clause 48 [Procedure]:

Baroness Ashton of Upholland: moved Amendment No. 43:
	Page 27, line 7, leave out paragraphs (a) and (b) and insert—
	"(a) may require the use of a specified form,
	(b) may require the submission of specified information or documents, and
	(c) may direct the manner in which a fee is to be paid;
	and the rules referred to in subsection (1) may provide for the consequences of failure to comply with a requirement under paragraph (a), (b) or (c)."
	On Question, amendment agreed to.

Baroness Crawley: My Lords, I beg to move that consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begin again not before 8.30 pm.

Moved accordingly, and, on Question, Motion agreed to.

Charitable Remainder Trusts

Lord Lyell of Markyate: rose to ask Her Majesty's Government whether they will introduce charitable remainder trusts.
	My Lords, I am very grateful for the opportunity in this short debate to seek to persuade the Government to introduce the system of charitable remainder trusts. This initiative comes from the Institute for Philanthropy and from others in the charitable sector, including our great universities and education generally, including charities for the underprivileged, medicine and healthcare and the arts and heritage, all of whom have been working closely on this subject for several years. I am most grateful to them all for their help and to my noble friends and noble Lords of all parties, speaking for a wide variety of charities, who support this initiative. In particular, I thank those who have found time to take part in the debate, and the Minister who is here to reply for what I hope he will be able to say.
	Charitable remainder trusts have been highly successful in the United States. Over the past 30 years they have raised more than $110 billion in support of charity. The reason for their success is that they have given the opportunity to individuals and families who are prosperous, but by no means super-rich, to give generously to charity without depriving themselves and their children in the mean time of moneys necessary for their own support. The figures suggest that there are some 3 million people in this category in Britain today, with free assets of between £70,000 and £350,000—there are more, of course, with slightly larger assets.
	Because the assets which are placed in such trusts are often pregnant with capital gain, whether they be shares or real property, they enable such assets to be sold free of the capital gains tax and thus to produce income from their full capital value, both for the settlor and—I say to the Minister—for the Treasury, which would not otherwise have benefited from their realisation for many years, if at all. They also give the settlor an immediate tax credit, the size of which depends on the length of time before the remainder fund enures to the charity.
	To give an example, the intending settlor—it may be a husband and wife—may have shares owned for many years; or perhaps a second home, which has likewise appreciated greatly in money terms, but yields little or no income; or perhaps pictures, jewellery or other works of art—all, say, to a value of £500,000, with a built-in capital gain of £200,000. They wish to have an income for the remainder of their joint lives and then for the fund that remains thereafter—the remainder—to go to charity. That may be one charity or a series of charities; they may seek to appoint who it goes to later.
	The immediate tax credit against their current income would be based on the actuarial value of the fund—say £200,000—which, at 40 per cent, would save tax of some £80,000. The assets, once in the trust, would be realised, and the couple would then receive an income of around, say, 4 per cent or 5 per cent—£20,000 or £25,000—per annum, worth, I would remind government, some £8,000 or £10,000 per annum to the Treasury in extra tax take. Invested in a balanced fund, this should allow for reasonable capital growth and thus income growth over the years as the capital appreciates. On the second death, the charity would inherit.
	Such charitable remainder trusts are skilfully promoted by charities in the USA. In Britain charities—major and minor, including our great universities—are eager to do likewise. They work closely with fund managers, who will manage the investments and also explain and handle the technicalities.
	The size of the available market from which such charitable giving is likely to come can be estimated from an estimate of United Kingdom wealth distribution published by Mintel, concentrating on the sectors Mintel describes as "affluent". Taking those with average free assets ranging between £70,000 and £350,000, there are some 3.25 million people, with such free assets totalling more than £500 billion. As I said, most of them need the use of this money to maintain themselves in their own lifetimes and, perhaps, to help their children or elderly or other dependants. But with the help of a scheme like CRTs, they are likely to be willing to unlock a significant part of such assets for the long-term, but nonetheless very valuable, benefit of charity.
	Naturally the Treasury will wish to work out what the cost to the Exchequer is likely to be over time. Funds currently placed in charitable remainder trusts in the USA exceed $100 billion—say £60 billion—but this is after the scheme has been available for some 35 years. They grew slowly at first. The idea would presumably take a few years to catch on here. If one makes a broad estimate, based on the relative sizes of the UK and US economies—ours is roughly one-sixth the size of theirs—in time total funds via charitable remainder trusts might reach £10 billion.
	Some revenue would clearly be forgone by the Exchequer from the initial tax credit and from the Treasury's "hope" of some large CGT payments not protected by tax planning. These should not be exaggerated, as they would probably have been reduced by other legitimate tax-planning measures. As I said, the income for the settlors and hence the income tax yields for the Treasury are likely to be enhanced and certainly received early. But I do not wish to make any case on spurious figures. I simply say that any tax forgone is likely to be very small against the overall capital figure of, say, an extra £10 billion finding its way to charity, and very small indeed against annual government income tax receipts, which in the past financial year totalled some £123 billion or, over 20 years, £2.5 trillion. An infusion of moneys to charity on this scale would surely be extremely welcome. Many of those charities, as the Government well know, carry out tasks and meet needs that might otherwise fall to government.
	A further practical and philosophical benefit is the close interest that settlors of charitable remainder trusts often take in the charities of their choice—in other words, those charities that will ultimately benefit from the remainder fund. They show this in both voluntary effort and often in additional giving through ordinary gift-aided methods.
	It is certainly Conservative philosophy to seek to promote and enhance the role of the charitable and voluntary sectors, and I believe it is an area that the present Government also think important.
	I hope that the 10 weeks' notice of this short debate has enabled those helping the Minister to locate and dust off the files. Serious talks were held by the Institute for Philanthropy with the Government in October 2001, just four years ago, when John Whiting, three United States tax lawyers and a representative of the Rockefeller Foundation were all over here and met both Paul Boateng, then Chief Secretary to the Treasury, and the Chancellor himself, who showed close interest for the best part of two hours—for which we are most grateful. Since then charity tax officials have explored the matter and raised what they saw as some potential problems. We believe that these have been adequately and sensibly answered. We are certainly prepared to answer further questions and to give further explanation if necessary, but we do not think that there ought to be any serious cause for deep concern about tax drainage.
	I therefore urge on the Government that the time has now come to implement charitable remainder trusts in Britain, to the advantage of the generously minded citizen and the very large potential benefit to charity.

Baroness Cumberlege: My Lords, I thank my noble and learned friend Lord Lyell of Markyate for initiating the debate and for his clear introduction of the subject. I give him my full support in his quest for charitable remainder trusts.
	Like so many Members of your Lordships' House, I am engaged in several charities. Charities deliver a huge number of services and on the whole deliver them very efficiently. Taking a charity such as Tomorrow's People, every pound spent by it is one and a half times more efficient at getting people into long-term employment than through the statutory services.
	Cancer Research UK is the largest cancer charity in the world. We are bigger than any in the United States, but we need to generate £1 million every day of the year. We work steadfastly to beat this dread disease, increasing the chances of survival, prolonging time in remission and enhancing the number of cures.
	At Chailey Heritage School, a Sussex charity, we have to generate £3.5 million a year to educate and care for the most severely physically and mentally disabled children. Despite their profound disabilities, we help to release their hidden talents, add to their skills and enhance their quality of life.
	At St George's Medical School, we have raised just under £1 million in three years to turn a very grotty student reception and recreation area into a place of pride for future doctors who will cure, treat and care world-wide. That is a pretty diverse group of charities but they all have something very much in common. They all have to attract cash from the big philanthropic trusts, without which none of them could continue.
	As a nation we have set up the National Lottery to provide for those efficient and effective charities. But, sadly, I am afraid that, like a honey pot, it has proved irresistible to the Government's sticky fingers. Charities rely on the generous public who give not only money, but also their time. There are 20 million people now involved in charitable work. They choose those charities which they see as important and those to which they want to give.
	The Government have organised a good precedent in their creation of city academies. The donors are involved not only in taking a close interest in the school, but in keeping a close watch on their generosity, seeing that their money is well spent. But, of course, city academies are for the very rich and not many of us have such wealth. But we give of our time, we are interested and we put effort into fund raising. In fact, I do not think that I have got a friend left. They see me coming along the street and they cross over.
	We talk so much about the health service being "patient led", about schools being "pupil oriented", about people "standing on their own feet" and being "given information so as to come to correct decisions". But these are mere government-generated clichés, which too often extol the virtue of doing what is on the current political agenda.
	We must credit the people who have worked hard throughout their lives—people who have made decisions and have exercised initiatives—and who have generated albeit modest rewards. Surely, it is reasonable to suppose that they will know and care where their money will be best used, having spent time and energy to work with and for a charity during their life-time.
	The Home Secretary recently stated:
	"We have a vision of a society where voluntary activity flourishes (and where all are enabled to play a full part in civil society). To this end, the Government is determined to do all it can to make it as easy as possible for those who want to contribute to do so, and to help develop a culture in which charitable giving is a natural part of everyone's life".
	Charitable remainder trusts will help to do just that. Does the Minister agree with that? Will he seek to influence the Chancellor and the Treasury to introduce CRTs, thereby helping Mr Clarke to turn his vision into a reality? He would be hugely popular, so would Mr Clarke and Mr Brown. That is a strong motivation for any government.

Lord Best: My Lords, I declare my interest as the director of the Joseph Rowntree Foundation and the chair of the Giving Forum, a body which draws together key organisations concerned with increasing charitable giving in the UK. I am very grateful to the noble and learned Lord, Lord Lyell, for bringing forward this debate on charitable remainder trusts or, as we tend to call them in the Giving Forum, "lifetime legacies". I am grateful, too, to colleagues who have advised me on these matters; namely, Helen Donoghue from the Charities Tax Reform Group, Judith Hill from the solicitors, Farrer & Co and Michael Pattison from the Sainsbury Family Trusts.
	We have heard tonight already of the benefits for charities and donors which could result from the creation of charitable remainder trusts. In my few minutes, I want to look at the possible grounds for anxiety about CRTs; namely, possible risks of abuse and the fear that rich people will use charitable remainder trusts for tax-dodging purposes. Of course, the very rich can already get good tax advantages from simply parting with income or capital assets here and now, claiming full tax relief on their gift against their present income, leaving the charity to get the same advantages in relation to capital gains tax without the more complicated arrangements of charitable remainder trusts. Rather, it is the not-quite-so-rich, often living on pensions or annuities, who need the comfort of continuing to receive income from the assets that they give away.
	However, the question which the Treasury and Her Majesty's Revenue and Customs can rightly ask is whether there are subtle abuses which would allow donors to have their cake and to give it away. The first concern is that arrangements might be made which involve charities that do not fall under the jurisdiction of the Charity Commission and the regulation which that body can exercise. In particular, because there is no regulator equivalent to the Charity Commission in Northern Ireland—but the same tax regime applies there—charities could be established which escape any public oversight. This problem would seem easy to avoid: legislation could ensure that only charities subject to regulation by the Charity Commission or comparable body could be recipients of donations through charitable remainder trusts. Since it is likely that Northern Ireland will be covered by such regulation in the not-too-distant future, charities there could then come into the system.
	The second hazard is that the donor might interfere with the trust—for example, investing proceeds only in those investments that produced a high income; that is, with the greater risk that the capital value is not maintained and that the charity eventually receives less than the original gift in real terms. Such difficulties would be overcome by simple rules requiring a separation of interests between the donor and the administrators of the trust. For example, only a trust administered by an approved body, required to handle the investments in a prescribed manner, would be permitted. It would seem relatively straightforward to require that trust deeds follow a prescribed format, which could include prohibition on donors being involved in any way in the administration of the trust and could even require that at least one trustee must be a corporate trustee regulated by the Financial Services Authority to reinforce the position.
	I suppose that there are always risks of abuse associated with the affairs of charities, but these would not seem to be increased where formally constituted charitable remainder trusts are involved; indeed, these provide an opportunity to incorporate features which are not possible in the generality of charitable giving.
	Therefore, would the Minister be willing to meet with members of the Giving Forum, including the Institute for Philanthropy, the Institute of Fundraising, the Charities Aid Foundation and the Charities Tax Reform Group to see whether any remaining obstacles can be overcome to introduce opportunities for lifetime legacies—for charitable remainder trusts—as proposed by the noble and learned Lord, Lord Lyell? There could be a very big prize in tapping into the capital assets of those not in the very rich category but in the less secure middle ground where incentives for giving capital, but not income, could unleash substantial resources for important charitable causes, such as those listed by the noble Baroness, Lady Cumberlege.

Lord Hodgson of Astley Abbotts: My Lords, the whole House should be grateful to my noble and learned friend for raising this important topic and for giving us a chance to debate it today—not just this House, but also the whole charitable and voluntary sector. This is a very important potential component of the future funding of the sector. I hope that the debate will help to bring a little global warming to the historic glacial attitude of the Treasury to this topic.
	I first came across this issue during the recent passage of the Charities Bill through your Lordships' House. However, I must make it clear that although I led for the Opposition on that Bill, I have no such responsibilities today. The official response lies in the capable hands of my noble friend Lady Noakes. I speak for myself from the Back Benches.
	Perhaps it is worthwhile looking at the Government's policy towards charities. At Second Reading of the Charities Bill, the noble Baroness, Lady Scotland, said:
	"The Government's three aims for the Bill are: first, to provide a legal and regulatory environment that will enable all charities . . . to realise their potential as a force for good . . . secondly, to encourage a vibrant and diverse sector independent of government; and thirdly, to sustain high levels of public confidence in charities".—[Official Report, 20/1/06; col. 883.]
	There is little doubt that the first two of these—enabling all charities,
	"to realise their potential as a force for good",
	and encouraging,
	"a vibrant and diverse sector"—
	would be enormously helped if charitable remainder trusts became a regular feature of the charity landscape.
	The debate that night and our debates in Committee were much illuminated by the contributions of my noble friend Lord Sainsbury of Preston Candover. I hope very much that the Minister's officials will find the time to look through the debates that we held and read the speeches of my noble friend. He has a distinguished record as a philanthropist and has established his own foundation, the Linbury Trust. So he speaks with great authority and experience.
	His experience is that the establishment of a personal foundation, often suggested as an alternative to a CRT, has become increasingly unattractive because of the regulatory framework, in particular the charity accounting SORP, the statement of recommended practice. In the same debate he said:
	"Last year, research was published by Philanthropy UK which suggested that a fifth of wealthy people considering establishing a grant making trust decided not to do so because of the bureaucracy it involved . . . A senior QC tells me he now advises his clients only to give out of income rather than endowing a grant making charity because of what he calls unwarranted interference by the authorities".—[Official Report, 20/1/06; col. 904.]
	By contrast, studies made of the experience in other countries show that CRTs are a valuable vehicle for encouraging donations from individuals who are unable or unwilling to release assets immediately because they offer the security of an assured income. As my noble and learned friend said in his opening remarks, they are attractive to a significant group of relatively affluent individuals, in particular a category called the mass affluent. For such people, existing tax breaks really do not provide sufficient incentive to give. The noble Lord, Lord Best, made some extremely compelling remarks about the fallibility of and fallacies in the tax evasion argument, and I hope the Minister will be able to take up the invitation and invite the noble Lord to the conference he seeks.
	I urge the Government to encourage the use of CRTs because they address the question of people's insecurity about giving away capital from which they might need income in the future. This is of particular significance in view of the worries many harbour over pension provision, longer life expectancy and the increasing costs of care in old age. They are also an effective way for the Government to work in partnership with the charitable sector and to enhance the scope for philanthropic activity among groups that have been identified as relatively reluctant givers in terms of their wealth and disposable income. The Government talked a lot about encouraging philanthropy during the passage of the Charities Bill. This is a practical example of how they could move from talk to action.

Lord May of Oxford: My Lords, I speak in strong support of the proposition that charitable remainder trusts be introduced in the UK, as advocated by the Institute of Philanthropy and others, and I should declare at the outset a range of interests in so far as if such a scheme were to be implemented, it would clearly benefit Oxford University where I work, the Royal Society with which I have a rather direct association, and a host of other universities, learned societies and other charitable institutions with which I have less direct association.
	The noble and learned Lord, Lord Lyell, introduced the debate with an admirably clear description of how charitable remainder trusts work and of the great benefits they bring to charitable institutions in the United States. He also acknowledged the costs to the Exchequer which I have reason to believe are relatively small compared with the benefits.
	My enthusiasm for such schemes derives from the 16 years I spent at Princeton University as the vice-president for research before moving to Britain in the late 1980s. Twenty years ago, charitable remainder trusts—they are known by different names in the United States and there is a more complex array of possibilities, some of them legally much simpler—brought to Princeton something like $50 million annually, along with other forms of giving; they were just one of many forms of making donations. Goodness knows what they bring in today, but I am sure that it is more.
	When in 1997 I became the Chief Scientific Adviser to the Government on their election, I had a meeting with the Chancellor to speak of my enthusiasm for the scheme, and captured his attention. He referred me to his officials, but after a decent interval for reflection I received a letter from Treasury officials explaining in a rather condescending tone that there would be costs to the Treasury for such a scheme, and essentially telling me to mind my own business. The general tone was that this was a disreputable thing to be talking about. I wish I had kept the letter. It spoke eloquently of a culture that did not look outwards to the experience of other countries.
	So I warmly welcome today's debate. I believe that charitable remainder trusts in the United Kingdom could convey benefits that go beyond the excellent and obvious one of large injections of capital into universities and other institutions in the charity sector. They have an additional purpose in that by providing an incentive to giving, they would help to change the UK culture towards the significantly more philanthropic one found in the United States. I find it a perpetual puzzle that in the US, both at private and at public institutions if you come from out of state, people pay what seem to us huge sums of money for their education and emerge with a sense that they have not paid the full real cost, and there remains a lifetime engagement. In this country, however, as is the case in my own country, Australia, people take for granted an essentially free education and emerge from it with little or no sense of indebtedness. So such a culture change is greatly to be encouraged and is something almost separate from the specificity we are talking about. But I believe that it is an important ingredient in helping to bring about a culture change which I think the Government wish to see and certainly have every reason to want for societal reasons no less than for the financial ones.

Lord Neill of Bladen: My Lords, I speak in this debate for reasons similar to those of my noble friend Lord May of Oxford. I have past experience of fund-raising, essentially in three areas: the first was for a hospice; the second was for a learned legal institute that could not keep going without charitable donations; and most important, in my experience, on behalf of the University of Oxford. We embarked on quite a major campaign of fundraising when I was there. Apropos of what has been said so eloquently by my noble friend Lord May of Oxford, one thing we realised when we started fundraising was that the mental attitudes of our Oxford graduates were about 800 years out of date. Everyone assumed that their education was free, that they owed nothing and would have nothing to put back.
	So we studied the American experience, which was extraordinarily illuminating. Even more breathtaking is the size of the funds raised by individual universities. My noble friend referred to Princeton. The figures for Harvard are huge. Experts carried out a survey on our behalf that gave us comparable figures for the Ivy League universities, and not just for them. An enormous amount of money is raised for these bodies, which are an essential prop of our civilisation.
	While I am not making a particular appeal on their behalf, I shall underline the problem. The needs of the universities for charitable giving are acute at the present time. So also are the needs of those who are sick. The medical and cancer charities are in desperate need of continuous funding, as are the churches which are falling down. The need for money is huge, and here we are being told about an instrument for raising money which has operated for many years in the United States and seems to work very well. The advantage from the donor's point of view is, of course, the retention of the right to income during the lifetime of the donors should they happen to nominate themselves as beneficiaries. That, they will get. But, as the noble and learned Lord, Lord Lyell of Markyate, pointed out in introducing the debate, the donors tend to establish a link with the charity. That can lead on to more giving and participation in the life of the institute or hospice which needs the donations. So it is not simply an impersonal giving of money; it can lead to personal contact.
	If there are objections to this, we want to hear from the Minister what they are. Are they objections of principle—the sort of fears voiced by the noble Lord, Lord Best, about fat cats establishing some racket out of this new type of giving? It seems highly implausible, but, if there is an objection of that character, it ought to be brought out and exposed. Or are the difficulties merely of a technical nature, which could be solved by people of good will sitting around a table and working out the details? If the problems are merely technical, they should be resolved. We all want to hear why the Government would not welcome this as a new instrument in the armoury of charitable giving, the demand being so huge and the willingness to give being very apparent.

Lord Phillips of Sudbury: My Lords, I thank the noble and learned Lord, Lord Lyell of Markyate, for introducing this important short debate. I also thank the Institute for Philanthropy. I should add the name of the Lifetime Legacies Coalition, which has done so much to highlight the importance of this subject and to advocate the virtues of the proposal. I am sorry that we are not going to have the wisdom of the noble and learned Lord, Lord Browne-Wilkinson, tonight, but at least we know that he is listening in to our deliberations.
	I should declare my own interests as a partner of Bates, Wells and Braithwaite, which acts for quite a number of the charities and bodies that are part of the Lifetime Legacies Coalition. Also, as trustee of various charities and chancellor of the University of Essex, I was particularly sympathetic to the remarks of the two noble Lords who spoke latterly.
	The noble and learned Lord, Lord Lyell, set out the case clearly. He spoke of America, where £110 billion has apparently been given under this scheme. He spoke of the 3 million British people who have free assets at a level where they might well take advantage of the proposed reform. He convinced me that there was little or no revenue disadvantage to allowing the proposal. He said the tax problems were superable.
	The noble Baroness, Lady Cumberlege, gave us the example of the city academies that might benefit from this proposal and emphasised the incentive to be generous. The noble Lord, Lord Best, usefully concentrated on the issue of abuse, because with tax reform abuse is always, rightly, the first consideration of a government. From what he said, and from what I know, there is no reason to suppose that there would be substantial abuse here. I add my own small thought: one might well give the remainder charity the right to appoint a trustee during the lifetime of the settlor donor, which would be a direct way of ensuring that there was no abuse.
	The noble Lord, Lord Hodgson of Astley Abbotts, reminded us of the debates during the passage of the Charities Bill, in which he and I were only too involved; he is right that this measure would be slap bang in the middle of the Government's own stated ambitions for charity. The noble Lord, Lord May of Oxford, with his great experience of both Harvard and Oxford, was right to talk about the need for a culture change and the possible benign impact of this reform upon that. I could not agree more with him. One has to take into account the fact that we have the bizarre situation of a declining level of giving in terms of the real wealth of the nation, and the even more bizarre fact that the top 10 per cent of earners give less as a proportion of their income than the bottom 10 per cent. We need to break out of this frankly not very flattering culture. In his contribution, the noble Lord, Lord Neill of Bladen, agreed with what the noble Lord, Lord May, had said.
	I will add only a couple of thoughts. First, accelerating the prospect of significant generosity has a number of effects that are not obvious. I speak now as a long-in-the-tooth solicitor who has often seen old people who have lost their confidence and their sense of independence, are becoming enfeebled, whether intellectually or physically, and are losing the spirit of generosity which, if it had been allowed to express itself earlier, would have led, I have no doubt, to bold gift-making. These trusts allow just that. One has to acknowledge the reality that people who live in an extremely materialist and competitive world and give away a lot of money want these days to feel that they get some esteem or recognition for it. We might all wish that we were purer in our motives, but that is the reality. A man of 50, allowed by this proposal to give a major gift to a named institution, would expect, and would get, esteem and recognition, as well as—dare I say it?—an involvement with the charity so benefited. That is amazingly infectious. I find clients who have been generous are always delightfully surprised at how much the connection then means.
	Secondly, to allow this reform would be a coping stone for the tax reforms that have been bipartisan in this country. It would be enlightened self-interest for the Treasury, for every pound given to charity is geared up immensely by the volunteer effort that always comes in behind it.

Baroness Noakes: My Lords, I start by declaring my rather modest interest, compared with those of noble Lords who have spoken before me: I am a director of the English National Opera, which would potentially be one of the beneficiaries of charitable remainder trusts, were they to be introduced in this country. It has been a privilege to hear my noble and learned friend Lord Lyell of Markyate bring this issue to your Lordships' House today. It is clear that he has a real commitment to the charity sector and I know that that sector will be grateful that my noble and learned friend has secured this debate.
	We have long supported the charity sector on these Benches. Of course I claim no monopoly on this, but we have a vision of the sector based on more power and freedom for it than is currently the case. We do not want charities to be beholden to the Government through complex and restrictive contracts. We want them to have more freedom, less interference and, as important, less bureaucracy. Our vision for the charity sector is not just about how government interfaces with that sector—we want the sector to be genuinely free, and that requires, in most cases, a higher degree of economic independence than currently exists. My noble and learned friend's idea for a new method of facilitating individual giving through these trusts is a major contribution to the debate.
	The idea comes from the US, which has a much stronger tradition of personal charitable giving, on the back of more extensive tax reliefs, as well as a lower marginal tax rate. In this country we already have a number of tax reliefs in our system, but we also know that they are not fully utilised. I understand that only about 30 per cent of giving in the UK is tax-effective. There must be more that the charity sector can do to increase its income by maximising the reliefs that are already available.
	My noble and learned friend's ideas are particularly interesting because in the US this appears to appeal not only to the rich, as he has pointed out, but to those of much more moderate means. In this country, around 60 per cent of personal giving is concentrated among about 5 per cent of donors. If a way were found to spread significant giving across a larger number of donors, the benefit to charities' finances is obvious.
	I know that my noble and learned friend will not expect me to say that charitable remainder trusts will be a part of the policy of our party at the next election. It would be lovely to say that we will accommodate all such good ideas, but the plain fact is that our first priority on taking office will be to ensure the stability of our public finances. Only when we have achieved that can we move on.
	I am sure that my noble and learned friend is aware that we have embarked on a wide-ranging set of policy reviews, one of which is our tax commission, chaired by my noble friend Lord Forsyth of Drumlean. I hope that my noble and learned friend Lord Lyell will ensure that today's debate is drawn to the attention of my noble friend and his commission. Our tax commission is charged in particular with looking at ways of simplifying our tax system. One of the drawbacks of charitable remainder trusts is that they could further complicate our tax code, which has already been massively overcomplicated by eight years of finance Acts.
	The Minister has told us several times that complexity in the tax code is a response to avoidance. The plain fact is that tax reliefs and incentives are sometimes only a hair's breadth away from avoidance. The noble Lord, Lord Best, outlined some of the possibilities that may be worrying people on that score. Charitable remainder trusts may involve not only complex legislation in introducing them, but another raft of anti-avoidance measures to ensure that abuse does not follow. That is not the general direction in which we will want to go when we have custody of the tax system again.
	For all those caveats, my noble and learned friend Lord Lyell has put an important issue of support for charitable giving on the table. We know that the Government have been looking at this for some time, yet we have heard no proper response from them. I hope that the Minister will tonight give us a straightforward account of the Government's views.

Lord McKenzie of Luton: My Lords, I add my welcome to the opportunity to debate this matter this evening and to thank the noble and learned Lord, Lord Lyell, for providing it. In doing so, I respectfully remind your Lordships' House that primacy on issues of taxation rests with the other place. That is ultimately where these matters will have to be settled.
	The Treasury and HMRC have had extensive discussions with voluntary sector representatives and professional advisers who have advocated the introduction of tax relief for gifts made through charitable remainder trusts. This Government are committed to a strong voluntary and community sector. Encouraging individuals to give to charity is just one aspect of that commitment and we have a number of measures in place to support charitable giving.
	Since the introduction of the Getting Britain Giving package in 2000, the range of tax reliefs for giving is broad and generous. Gift aid was improved in 2000 to apply to donations of money, whatever the amount. Individuals who are UK taxpayers can authorise the charity to reclaim income tax at the basic rate on their donations. If the donor is a higher-rate taxpayer, the donor can reclaim the remaining tax on his next self-assessment return. The growth in the use of gift aid has made a real difference to charities. In 2000–01, £222 million was repaid to charities in gift aid donations. In 2004–05, this figure had grown to £625 million. Higher-rate taxpayers reclaimed £150 million in 2004–05 on their gift aid donations.
	Payroll giving enables employees to give through the payroll and to get tax relief up front. In 2004–05, £83 million was given in this way, and many charities value the regular income stream that payroll giving provides. Since 2000, income tax and corporation tax relief has been available for gifts of quoted shares and securities and, in 2002, relief for gifts of land and buildings was added. Gifts to charity of money or assets are exempt from capital gains tax and inheritance tax. With such a range of reliefs, is there a need for any more?
	There is considerable scope for the existing reliefs to be more widely used. Research for HMRC demonstrated a low level of awareness of the existing tax reliefs. The Charities Aid Foundation said that only around a third of donations are made through gift aid and that this could be increased to 60 per cent. The noble Baroness, Lady Noakes, made that point. Payroll giving is offered by only around 2 per cent of employers.
	This Government are playing their part in encouraging the use of the tax reliefs for giving. We provided most of the funding for the Giving Campaign, which raised awareness among charities of the reliefs and provided toolkits to support them. In January 2005, the Home Office launched a scheme to encourage small and medium-sized employers which have fewer than 500 staff to offer payroll giving. So far, the number of SMEs offering payroll giving has increased from 901 to more than 2,100.
	With so much more to achieve through the current reliefs, we need to consider very carefully whether any new relief would bring about additional giving and whether that additional giving would outweigh the costs involved. Charitable remainder trusts are complex vehicles for most donors and charities to understand, and it is not clear that there is a market for such a method of giving in the UK.
	Another question we must ask is how important tax relief is in encouraging charitable giving. The decision to give to charity is influenced by all sorts of factors. Tax relief is just one and, for many individuals, it is not decisive. Motivation for giving is influenced by a range of factors, such as commitment to the cause or religious beliefs. Research by the National Council for Voluntary Organisations and the Charities Aid Foundation tells us that gender and regional variations in levels of giving exist. Research for HMRC shows that, where donors know about the reliefs, those reliefs do not influence greatly the decision whether to give or how much to give.
	So would a relief for giving through charitable remainder trusts make a difference? Those who are campaigning in support of the proposal cite the success of these vehicles in the US. The noble Lords, Lord May and Lord Neill, spoke about that matter. We need to be sure that the evidence shows that CRTs have boosted giving by the wealthy rather than just facilitated it. We know that reducing tax liabilities—estate duty in the US—is a prime motive, as witnessed by the marketing material. The culture of giving in this country and the tax system are quite different and we need to be careful not to draw too many parallels. I understand that a charitable remainder trust may give a charity a degree of certainty that a legacy does not—wills are often challenged or changed—but how many people will be prepared to make an irrevocable gift into such a trust and would these be the very people who would leave legacies to charity in their wills anyway?
	These are complex vehicles that might bring additional costs to donors, charities and HMRC. The noble Baroness, Lady Noakes, made reference to that. I took the opportunity to look at the website of the Institute for Philanthropy and went through the opinion provided by James Kessler QC on what the outline of a trust might look like and the sort of issues that cropped up which would have to be addressed. Would it be directed only at individuals? Were there any restrictions on residents or domiciles? Who specifies the charities? How long could the non-charitable period last? What about the income that arises to the trust? Would there be a difference in providing an income that would come out ordinarily from what the trust generated or an annuity? What happened if the arrangement was for higher-than-market yields—would that be permitted?
	The inheritance tax relief would have to cater for different circumstances, whether it was just the settlor who had the interest in possession or somebody else. What gifts should get income tax relief? Would it just be cash, land, shares, securities or works of art? How is the income tax relief to be calculated? Is there to be a minimum level of the reversionary interest? How can the income tax relief be used? Can it be carried forward, back, set against gains or just income? What about the anti-avoidance rules that are already in place in relation to gifts of qualifying investments? There are more measures. I do not say that technically these could not be dealt with, but it would clearly be a complex process.

Lord Lyell of Markyate: My Lords, I am extremely grateful to the Minister. I was fascinated by the list, but would he agree, on reflection, that they are not very difficult questions to answer?

Lord McKenzie of Luton: My Lords, the points of principle could be settled quickly but the drafting that would be needed to put those into the legislation would certainly involve complexity. We know from practice that whenever complex rules are established someone seeks to avoid them, therefore you have evermore complex rules. That is the history of so much tax legislation in recent times.

Lord Phillips of Sudbury: My Lords, I am most grateful to the noble Lord for giving way, but is he aware that one of the proposals is that there should be potentially a set form which would have to be used to take advantage of the relief? It would not involve the Revenue in a plethora of different types of trust and so on or, indeed, settlors. Would that not get round much of the concern that he is expressing?

Lord McKenzie of Luton: My Lords, there might be a set form and a set process, but the legislation that underpins the arrangements could be complex. The points that I have just run through, which are just some of the issues that came out of the opinion, demonstrate the potential complexity of the arrangements. Donors may need to seek professional advice and charity fundraisers would need to explain how these vehicles would work and so would need training. HMRC would have to deal with tax returns and compliance of these trusts—although that could be helped in part by the point which the noble Lord, Lord Phillips, has just made—as well as make changes to the self-assessment system to allow donors to claim relief.
	With these extra burdens, we would want to be sure that additional giving would be generated and that the benefits would outweigh the additional cost. A diversion of giving that might otherwise proceed via gift aid would have an adverse impact on charities. There is also evidence that the existing reliefs for charitable giving are abused and we would want to be very careful that any new reliefs would not be abused. The noble Lord, Lord Best, touched on that point. Certainly, proper oversight of a CRT would be key. The Finance Act 2004 contains anti-avoidance measures that had to be brought in to deal with abuse of the arrangements for gifts of shares to charities. That illustrates the environment that we could be in.
	Officials in HMRC and HM Treasury continue to explore the proposals for CRTs in some detail to assess the available evidence. Government will always be interested in exploring ideas which may bring real benefit to charities. With CRTs the evidence is hard to establish, but we are keeping this matter under review as part of the budget process. I was asked specifically about the Government's view on that. I stress that we have made no decision on whether CRTs are appropriate and a good thing, but they are being kept under review. Many of those involved in the Lifetime Legacies Coalition, including the Institute for Philanthropy, which was referred to by the noble and learned Lord, Lord Lyell of Markyate, and the noble Lord, Lord Phillips, and the Institute of Fundraising, have put considerable work into making the case for a tax relief for a charitable remainder trust and I am sure that they will continue to have a very positive dialogue with the Treasury and HMRC.
	The reference of the noble Lord, Lord Hodgson, to the Treasury's glacial approach was somewhat unfair. There has been a dialogue, which can continue. In the meantime, there are a number of government initiatives to encourage giving and the use of the existing tax reliefs. In November, the Home Office launched A Generous Society, which contains a range of measures to help government to play their part in meeting the challenge set by the Giving Campaign to double charitable donations in real terms over the next 10 years. This includes a programme to train and support charities in their use of tax-effective giving and extending charitable giving citizenship material to primary schools.
	I will seek to deal with one or two other points that were raised. I understand the point made by the noble Baroness, Lady Noakes, that no commitment is made on behalf of the Conservative Party to have this as part of its programme—she said that it is something that its tax commission may consider. However, the point about complexity is real. The noble Lord, Lord Phillips, made a point about accelerating giving. There is no reason why that acceleration could not take place by way of a legacy. The gift does not happen immediately but it does not happen under the trust arrangement in any event.

Lord Phillips of Sudbury: My Lords, the noble Lord cannot have his cake and eat it. The proposal allows a gift of a major asset now that has impact for tax and charitable purposes now but retains the income of the gift during the lifetime of the donor. That is a strong come-on for generosity now, because it does not cut one loose from the whole asset.

Lord McKenzie of Luton: My Lords, I understand that point, but the gift does not reach the charity until the end of the life interest. The same would apply under a legacy. The noble Baroness, Lady Cumberlege, referred to the great deal of work in which she is involved—I pay tribute to that. We recognise that charities need to do a great deal to raise funds. One way in which we can do that is to make sure that the existing reliefs are used to the full and certainly in relation to gift aid, where we have identified that just 30 per cent is taken. That figure could be doubled. Something like £600 million is potentially available to charities because of it. Tax relief is one of the many factors that support a culture of giving and civil society has an important role to play in encouraging those who can afford to give to do so. The noble Lord, Lord May, in particular, spoke about the need to change and move forward the culture in the UK to seek to match that of the US.
	I hope that the noble and learned Lord, Lord Lyell, in particular, and all those who have spoken in the debate will not be too disappointed by the response. I hope that they will recognise a shared objective in supporting a strong voluntary and community sector in the most effective way possible. The Government are determined to do all that we can to foster and encourage a deeper, broader culture of giving into the future.

Lord Davies of Oldham: My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 pm.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 8.26 pm to 8.30 pm.]

Immigration, Asylum and Nationality Bill

Consideration of amendments on Report resumed.

Lord Hylton: moved Amendment No. 44:
	Before Clause 51, insert the following new clause—
	"TRAFFICKING
	(1) The Secretary of State may provide accommodation and other essential living needs to persons who have been trafficked into the United Kingdom.
	(2) For the purposes of this section, a "trafficked person" means—
	(a) a person who is a passenger within the meaning of section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) (trafficking people for exploitation), and who has been or whom the Secretary of State believes may have been "exploited" within the meaning of subsection (4) of that section;
	(b) a person who is the victim of an offence under sections 55 to 59 of the Sexual Offences Act 2003 (c. 42) or section 145 or 146 of the Nationality, Immigration and Asylum Act 2002 (c. 41);
	(c) a person whom the Secretary of State decides, on the basis of the information available to him, should be treated as a person to whom paragraphs (a) or (b) above apply, pending any final determination of whether or not they have been trafficked within the meaning of those subsections."

Lord Hylton: My Lords, as can be seen from the heading of the amendment, it attempts to improve the situation as regards trafficking of persons. It is in fact a modified version of my Committee stage Amendment No. 74.
	I emphasise that it is permissive and imposes no duties. The definition of a trafficked person has been improved by using the language of existing statutes. As your Lordships know, there is already some accommodation for women trafficked for purposes of prostitution through the Poppy project, while local authorities have responsibilities for trafficked children. There is however no specific provision for women trafficked for non-sexual exploitation, or any accommodation at all for men. The new clause fills that gap. It grants only a power to the Secretary of State. He or she would not have to return to Parliament if, following a consultation on the Home Office action plan headed "Tackling Human Trafficking", it is decided that accommodation is in fact needed. This could then be provided for the rehabilitation of victims and to facilitate the prosecution of criminals. I suggest that both purposes are necessary. I beg to move.

Lord Dholakia: My Lords, we support the amendment in my name and that of the noble Lord, Lord Hylton. The reason is as quite rightly explained; there is already provision for accommodation for women trafficked for sexual exploitation through the Poppy project, and local authorities have responsibility towards children. However, for adults trafficked other than for sexual exploitation, or for men trafficked for sexual exploitation, there is a gap in such a provision. The clause would give the Secretary of State a power to fill that gap, either where the person is victim of the criminal offence of trafficking under UK law or where a person may be such a victim.
	The section imposes a power only, and would put the Secretary of State in a position not to have to return to Parliament when he has made a decision on the basis of the consultation on the Home Office action plan on trafficking, "Tackling Human Trafficking". That would assist in dealing with the problem.

Baroness Turner of Camden: My Lords, I spoke several times during the passage of the Bill about the trafficking of women and this amendment is worthy of support, because it covers not only trafficking of women for sexual purposes, but general trafficking of people for exploitation. Obviously, we must all take seriously the business of trafficking undertaken by criminals across Europe and I know that my noble friend does. I await what she has to say.

The Earl of Sandwich: My Lords, I, too, support my noble friend's amendment. It gives me the opportunity to ask the Minister whether the Home Office will think again about the reflection period that we discussed briefly in Grand Committee. The reflection period helps trafficked people to recover from any traumatic experience, to take advice and to make an informed decision on whether to co-operate with the police. The Netherlands currently operates a three-month period; in Belgium and Norway the period is 45 days. Other states provide at least 30 days, which is a requirement of the Council of Europe convention. Without such a reflection period many victims will face immediate deportation, which is in neither their interests nor those of the police. While the Government are considering the Council of Europe convention—and I am sure that they recognise this as a key issue—perhaps they might consider whether the minimum of 30 days is an adequate period of reflection.

Baroness Masham of Ilton: My Lords, I, too, support the amendment. It seems to be helpful, and it should be helpful to the Government. How many such people are we talking about and what is happening to them at the moment?

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lords, Lord Hylton and Lord Dholakia, for raising an important issue that we debated in Committee. I hope that noble Lords have had the chance to study the detail in which I sought to set out where the Government are looking to deal with the issue of victims of trafficking and also to deal with the perpetrators of trafficking.
	The amendments change something that is important—that, irrespective of individual needs and circumstances and without any limit in time, we provide unconditional support. While I understand the sentiment behind the amendment we must recognise that a critical factor is that we do all that we can to find the perpetrators of trafficking and seek the assistance of victims to achieve that. We rightly talked about that at great length in Grand Committee.
	I hope that I made it clear then that the provision of targeted and appropriate support is already an integral part of the Government's strategy to tackle trafficking. The Home Office-funded Poppy scheme is at the heart of current support. I know that the noble Lord, Lord Hylton, has had the opportunity to discuss with Home Office Ministers his concerns that we ensure that funding continues. I believe that he has received a commitment from the Minister that it would continue for the next two years and that there should be recognition of the need to think regionally about the operation of the Poppy scheme. I hope that the noble Lord was reassured by that.
	For the first four weeks of the scheme, all victims accepted onto it are provided with shelter, support, medical attention, information and any other services they need to meet their immediate needs. That gives them time to recover, reflect and make decisions about their future. After four weeks, support is provided in return for co-operation with the authorities. It is envisaged that victims will be on the scheme for around four months but may remain on it longer if necessary.
	We believe that that is the right approach. It enables law enforcement agencies to act on vital information and, one hopes, to secure prosecutions and convictions to prevent any future trafficking. That is in line with the approach taken across Europe and in other destinations and transit countries. Looking at those who abuse and exploit victims is not just in the Government's interest; it enables current victims to be protected and in the longer term helps to prevent future victims. Existing arrangements operate successfully on a case-by-case basis, with care and support packages delivered on the basis of an assessment of the individual, ensuring that we meet their particular needs. This enables us to target support effectively on those in greatest need.
	Although I understand what is behind the amendment, operating on an unconditional basis would risk stretching the resources to the point where some victims may be unable to access the help they require. It may also open up the system to abuse. We have no evidence that the flexible case-by-case approach we have adopted is any less effective in meeting the needs of victims of trafficking than the approach proposed.
	I take on board what the noble Earl, Lord Sandwich, said about 30 days. I will perhaps consider that and write to him, if I may. One matter of which the noble Earl will be aware, which we discussed in Committee, is the obtaining of evidence. That is why we have the present process to acquire as much information as possible. While we know something about the exploitation of trafficked women, we know very little about the exploitation of others in the workforce who have been trafficked. Our ambition is to gather information and to be able to provide the right kind and level of support to the people involved. An information-gathering exercise on that is currently taking place. I hope that noble Lords had an opportunity in Committee to look at the documentation that I provided.
	With full recognition of the particular concerns of the noble Lords, Lord Hylton and Lord Dholakia, I resist the amendment. We believe we have the correct balance in trying to secure the appropriate support for individuals while recognising the need to gather as much information as possible so that we can capture the perpetrators of trafficking and ensure there are no future victims. On that basis, I hope the noble Lord will feel able to withdraw his amendment.

Lord Hylton: My Lords, I am most grateful to all noble Lords who have spoken. I noticed that they all spoke in support of the amendment. I particularly thank my noble friend Lord Sandwich for what he said about reflection periods and those who may have suffered the most undesirable fate of immediate deportation—perhaps because no accommodation was available when they were arrested or rescued, and therefore they were sent back to a very uncertain fate in another country. I emphasise that my amendment was wholly permissive and did not place any duty on the Secretary of State, though he might find it quite convenient at some future stage.
	I should also mention children and young people, some of whom may have been trafficked into this country for purposes of what one might call domestic slavery, and others who may have been trafficked here for a whole range of purposes. My understanding about such children is that they are usually fostered by local authorities when they become known. I simply question how well that works in practice. In passing I thank the noble Baroness's Home Office colleague for indicating not only that funding for the Poppy project would continue but also that it might be replicated in parts of the country other than London. With those remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 52 [Refugee Convention: construction]:

Lord Avebury: moved Amendment No. 45:
	Page 29, line 4, leave out subsection (1).

Lord Avebury: My Lords, the purpose of this amendment and Amendment No. 47, which I will speak to with it, is to knock out from the clause the references to Article 1F(c) of the refugee convention. We believe that it is wrong in principle for the Government to construe an international treaty in statute against the advice of the custodian of the treaty and without any consultation with the other 146 states that are party to it.
	We have objected to the progressive narrowing of the exception in Article 1F in previous legislation, and we object to the proposal in this clause to fetter the discretion of the courts to take account of all the circumstances in deciding whether a person is disqualified from the protection afforded by the convention. As your Lordships know, the UNHCR has made repeated representations to the Government on this matter, first in a letter of 10 November 2005 and then in another letter in the middle of December. I quote one paragraph from the first letter in which the UNHCR said:
	"With regard to the current draft of Clause 51 of the Immigration, Asylum and Nationality Bill, currently before Parliament, UNHCR notes that any legislative action taken by the UK would have significant influence on the interpretation and/or application of Article 1F of the 1951 Convention by the authorities of the other 146 Contracting Parties to the 1951 Convention and its 1967 Protocol. Consequently UNHCR cautions against the adoption of legislation that is aimed at interpreting one of the subsections of a provision of the Convention which is designed to be read in context and as a whole."
	I would like to know whether the Minister has had consultation with the UNHCR since that letter was written and, if so, what was the outcome of it? We have talked about consultation with many organisations in previous clauses. I can hardly think of any provision of the Bill in which it is more important for us to have engaged in consultation with—to use new Labour jargon—the "stakeholders" than something which affects 146 other countries and the treatment of vulnerable individuals who seek protection in any of those countries and who are to be deprived of it in this country because of the narrow interpretation that we choose to place on Article 1F.
	I would also draw the Minister's attention to the memorandum sent by the UNHCR with the letter to the Home Office on 10 November. I am not going to read the whole thing as it is rather long. However, in the fifth paragraph it says:
	"UNHCR's guidance on the interpretation of the exclusion clauses in Article 1F of the Refugee Convention is set out in the attached September 2003 'Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees'. These guidelines were issued pursuant to UNHCR's mandate under its Statute and its supervisory function under Article 35 of the 1951 Convention. They are intended to provide interpretative legal guidance for governments, legal practitioners, decision makers and the judiciary".
	I hope the Minister is listening to what I am saying, because I want to ask her whether she does not think that the Government should have seriously considered the objections of the UNHCR, which are based on a longstanding interpretation of the exclusion clauses, which everybody has accepted since September 2003 when these guidelines were issued.
	Your Lordships will remember that the UNHCR engaged in a very thorough international consultation on the application of the convention in which, to my knowledge, our own Government took part. I do not believe that at that time the exclusion clauses in Article 1F were queried or that the guidelines were disputed. For the noble Baroness to come along and tell your Lordships that now we want to unilaterally abrogate from certain of the responsibilities, particularly the interpretation of Article 1F, in the context of the convention as a whole, is an unsatisfactory way to treat our obligations under the convention and I think breaks the spirit of our adherence to that treaty. I beg to move.

Lord Hylton: My Lords, I am in general support of the amendment moved by the noble Lord, Lord Avebury. The courts in this country are perfectly well accustomed to considering the subject matter of the convention, in particular Article 1F(c), and they ought to be allowed to continue to do so without hindrance.

Baroness Ashton of Upholland: My Lords, the noble Lord, Lord Avebury, speaks with great passion on an issue he feels strongly about and I always listen with great care to what he says in your Lordships' House and beyond. We simply disagree on the outcome and purpose of this part of the legislation. The primary purpose of Clause 52 is to make it crystal clear in statute that terrorists are excluded from asylum by virtue of Article 1F(c) of the 1951 Geneva Convention on the Status of Refugees. There is no disagreement between us on how that was developed to make clear that terrorists were excluded.
	The question the noble Lord raises is about how we have tried to do that. We are not seeking to make 146 other states think again. We are simply saying that in the context of this legislation we think it right and proper to put this provision in the Bill. Of course I take seriously what the UNHCR London office has said to us. There has been a further exchange of letters at official level. There were meetings with officials of the UNHCR before Christmas. The noble Lord will know that contact and dialogue continues with the UNHCR, but we disagree with certain elements it raises. We do so having looked carefully at the UN Security Council resolutions and the interpretation placed on aspects of the convention.
	The amendment would remove subsection (1) from the clause which clarifies that acts of committing, preparing or instigating terrorism and acts of encouraging when inducing others to do so constitute,
	"acts contrary to the purposes and principles of the United Nations"
	within the meaning of Article 1F(c). The second amendment removes the definition of "terrorism" from the clause. I will try to address each in turn.
	As I have indicated, Article 1F(c) has long been interpreted by the courts and by the UN Security Council resolutions as allowing for the exclusion of terrorists from asylum. It is not explicit within the wording. We think that in the light of the heightened threat from terrorism that this country now faces, it is appropriate to legislate to provide statutory backing to the accepted practice that terrorists should not be afforded the protection of the refugee convention. I do not accept that it is inappropriate for Parliament to legislate to interpret specific provisions into domestic law.
	As noble Lords are aware, it has already been done on a number of occasions. In Section 34 of the Anti-terrorism, Crime and Security Act 2001, we clarified that no balancing test should be applied when deciding whether to exclude an individual from the refugee convention on the basis of Article 1F or to remove the protection of the convention from them by virtue of Article 33 of Section 2.
	I turn to Amendment No. 47 on the definition of "terrorism". I think that I made the Government's position as clear as I could in Committee. Parliament legislated to define "terrorism" in the 2000 Act and we believe it is appropriate to reflect the definition of the national Parliament within this clause. It must be drawn sufficiently widely to cover all the conduct we would wish to capture.
	The definition of "terrorism" in our domestic law is compatible with those accepted in other fora; for example, the definition in the European Union framework decision on combating terrorism. We have been clear, however, that we will continue to look at our approach to defining Article 1F(c) in the refugee convention in the light of developments in the Terrorism Bill. Noble Lords—the noble Lord, Lord Avebury, in particular—will be fully aware that we have asked the noble Lord, Lord Carlile of Berriew, to conduct an independent review of our definition of terrorism and report back within a year of commencement of the new Terrorism Act. If Parliament decides in the light of that review that changes to the existing definition are needed, we would commit to bringing forward this change if parliamentary time allowed and would reflect the new definition in Clause 52 of this Bill as necessary.
	As I said in Committee, the Government think it appropriate to take the matter forward in the way I have stated for the reasons I have given. We believe that it is compatible with what we wish to do. We make the commitments I have given already as regards the review of the noble Lord, Lord Carlile. I hope that the noble Lord feels reassured and able to withdraw the amendment.

Lord Avebury: My Lords, the noble Baroness's disagreement is not with these Benches: it is with the UNHCR, the custodian of the convention. It is for that body to decide the proper way for the statute to be interpreted. I am glad to know that the noble Baroness has had these consultations with members of the UNHCR since the letter of 10 November and the further letter in December in which it reinforced its opinion. I am certain I can predict that in those conversations it did not resile from the position that we are setting a bad example and that, inevitably, many of the other 146 states which are parties to this treaty will reconsider their own position. There could even be a leapfrogging in the narrowing of the definition of people who come within Article 1F.
	The situation is already very difficult where a person may technically have committed an act of terrorism. I take the example of a person from this country who is applying for asylum elsewhere. He was found to have committed criminal damage to council offices in pursuance of his opposition to the poll tax, when it existed. Technically, that person would be a terrorist. Anyone who damaged council property in pursuance of the political objective of getting the poll tax abolished would, within the definition adopted from the Terrorism Act 2000, have been a terrorist. In such legislation, one would not be able to question whether the surrounding circumstances were such as to make it advisable and desirable to grant that person protection because he would be a terrorist. He would be excluded from protection by the mechanism the Government have chosen.
	We should continue to consult the UNHCR. We should continue to bear in mind the effect which the Minister did not mention: that other states would copy the example we set and that thereby more people would be excluded from protection in a way that the UNHCR and most of us would consider highly undesirable. However, we shall not make further progress today. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Ashton of Upholland: moved Amendment No. 46:
	Page 29, line 12, leave out subsections (2) to (4) and insert—
	"(2) In this section—
	"the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, and
	"terrorism" has the meaning given by section 1 of the Terrorism Act 2000 (c. 11)."

Baroness Ashton of Upholland: My Lords, after the introduction of the Bill, we identified an overlap between the appeal provisions in Clause 52(2) and Section 33 of the Anti-terrorism, Crime and Security Act 2001 as regards appeals on Article 1F of the refugee convention.
	The provisions have a similar intention; that is, to provide in cases where the Secretary of State considers that a person's criminality or other activities excludes them from the protection of the refugee convention for the appellate bodies to consider those issues first when determining an asylum appeal. However, while these provisions have the same aim, there are procedural differences between them which mean that they cannot work together. The amendment is designed to address them. It removes the appeals provisions from Clause 52, repeals Section 33 of the 2001 Act and inserts into the Bill a new clause, refugee convention certification.
	I want to draw noble Lords' attention to three aspects of the new clause. First, it has a broader scope than Clause 52(2) as it makes statutory provision for appeals brought on grounds relating to the national security aspects of Article 33(2) of the refugee convention as well as Article 1F.
	Secondly, under the new clause, the Secretary of State will certify that an appellant is not entitled to the protection of the refugee convention because 1F and/or Article 33(2) applies and requires the asylum immigration tribunal and SIAC to begin substantive deliberations on the asylum appeal by considering the certificate.
	Thirdly, while Section 33 of the 2001 Act excludes the possibility of judicial review in relation to decisions connected with the certification, the asylum claim or decisions made as a consequence of all or part of the asylum appeal, we have decided not to replicate this in the new clause. Individuals affected by SIAC decisions have a statutory right of appeal to SIAC. Decisions taken in connection with a certificate can therefore be challenged through this appeal route.
	In summary, the amendment does two things. First, it tidies up the statute book to ensure that two legislative provisions do not impact on the same situation in a slightly different way. Secondly, it removes from the statute book a provision that excluded the possibility of judicial review on specific SIAC decisions. I beg to move.

Baroness Anelay of St Johns: My Lords, I thank the Minister for her explanation of these amendments. I seek an assurance from her about the position on something I raised in Grand Committee. Given her explanation, I suspect she will easily be able to give me reassurance. As I have given her advance notice, it is a matter on which I require something to be put clearly on the record.
	In Grand Committee, on 19 January at col. 258, I asked how Clause 52 would affect the position of child soldiers. There must be occasions when such children will seek to come here for refuge. We would all hope and expect that their application will be considered positively on the basis that they acted under duress. All too often we hear of children as young as 10 or even less being kidnapped and, by force majeure, forced to become soldiers. They are traumatised, often given drugs so that they can be kept in thrall, and they can be psychologically as well as physically damaged.
	Clause 52 had appeared to prevent consideration of their cases on the basis of the acts that they had committed. In response to my query, the Minister said in Grand Committee that the Government,
	"would of course consider every case on its individual merits and absolutely take into account issues of coercion—that is a critical issue in these particular tragic circumstances".
	She went on to say:
	"Clause 52 does not remove that element of discretion, so there is no question that child soldiers would be automatically excluded under the clause".—[Official Report, 19/01/06; col. GC 264.]
	In the light of the Government's amendments to Clause 52 and their tabling of the new clause after Clause 52 today, I therefore need to ask the Minister to confirm whether her undertaking given in Grand Committee holds true for the new clause.

Lord Dholakia: My Lords, I wish to speak to government Amendment No. 48, which inserts a new clause after Clause 52. It replaces the other provision in Clause 52 and also repeals and replaces Section 33 of the Anti-terrorism, Crime and Security Act 2001. Section 33 applied only in national security cases considered serious enough that they should be heard before the Special Immigration Appeals Commission—SIAC. The new clause will apply similar provisions to asylum appeals which do not meet this level of seriousness.
	It is no good the Government seeking to justify this clause by referring to cases raising serious national security concerns. Those cases undoubtedly will go to SIAC. Under Section 97 of the Nationality, Immigration and Asylum Act 2002, cases are sent to SIAC if the Secretary of State, acting in person, certifies that the decision appealed was taken wholly or partly on the basis that the person's exclusion or removal from the United Kingdom would be in the interests of national security, or in the interests of the relationship between the United Kingdom and another country; or where the decision was taken on the basis of information that in the opinion of the Secretary of State should not be made public in the interests of national security, in the interests of the relationship with the United Kingdom and another country or otherwise in the public interest—maybe the interest of national security.
	What examples can the Minister give of the people at whom this clause is aimed, since it is not aimed at those who raise national security concerns? How can the Minister justify using a procedure previously reserved for national security cases in such cases? My noble friend Lord Avebury raised the information supplied by the UNHCR. It has provided detailed criticism of the way in which the Government have interpreted Article 1F in the clause, which makes clear that the use of the definition of terrorism in the 2001 Act is a misinterpretation of that article. It notes:
	"the assertion in Security Council resolutions that an act is "terrorist" in nature would not by itself suffice to warrant the application of Article 1F(c), especially, as there remains no universally accepted legal definition at the international level".
	In UNHCR's view, only
	"persons who are in positions of power in their countries or in State-like entities",
	and,
	"in exceptional circumstances, the leaders of organisations carrying out particularly heinous acts of international terrorism which involve serious threats to international peace and security"
	are persons who could act contrary to the principles and purpose of the United Nations and fall within 1F(c). So, the clarity is already there. Article 1F(c) envisages acts of such a nature as to impinge on the international plane in terms of gravity, international impact and implications for international peace and security.
	The Government attempt to justify the new clause by reference to Security Council resolutions, as the Minister did both in Committee and in her letter of January 2006 to the House of Lords Constitution Committee, but we do not believe that that stands up to argument. In Committee in the House of Commons, the Minister of State noted that there had been 32 exclusions under the whole of Article 1F in 2004. He accepted that they could not point to any cases where the absence of the clause had led to a person being recognised as a refugee who should not have been so recognised. Such a case is not going to be found among the cases that do not pose sufficient threat to warrant their going to SIAC, and thus the justification for the new clause appears weak.
	There are two other issues. In paragraph 179 of its third report, the Joint Committee on Human Rights said:
	"To give effect to the Government's stated purpose of merely making explicit what Article 1F(c) implicitly requires, the clause would need to be amended to decouple it from both the broad definition of 'terrorism'"—
	in Section 1 of the Terrorism Act 2000—
	"and the published list of unacceptable behaviours in its present form".
	Secondly, the House of Lords Constitution Committee, in the letter of 13 December, said:
	"We share the view of others that it is not appropriate for Parliament acting unilaterally as a national legislature to reinterpret in this way an international treaty to which the UK has become a party."
	In response, the Government cited two examples of their doing so: Section 72 of the Nationality, Immigration and Asylum Act 2002, which purports to interpret the meaning of "particular serious crime" under Article 33(2) of the refugee convention, and Section 31 of the Immigration and Asylum Act 1999.
	All that is at odds with the convention's objective and purposes. Moreover, it runs counter to the longstanding understandings developed through state practice over many years regarding the interpretation and application of Article 33. We see no good reason for including Clause 52 in the Bill and very good reasons for not doing so.

Lord Hylton: My Lords, I rise briefly to support the noble Baroness, Lady Anelay of St. Johns, because she raised the issue of child soldiers. These wretchedly exploited people pose serious problems in Uganda, the Congo, Sudan and West Africa and probably sometimes also in Asia and South America. The problem is worldwide and urgent and I hope that the Minister can say something helpful about them.

Baroness Ashton of Upholland: My Lords, I begin with the noble Lord, Lord Hylton, and the noble Baroness, Lady Anelay. I stand by everything that I said in Committee and reiterate it. That will be done on a case-by-case basis. It is clear to all of us that if there is compulsion or coercion, we are not dealing with a terrorist. In the case of child soldiers, that could not be clearer. I hope that noble Lords will take that as an absolute certainty—the Government will look very carefully, case by case. Where a child has been coerced by any means, they could not conceivably be a terrorist and we will act on that basis. I want to be as clear as I possibly can on that. I am very grateful to the noble Baroness and the noble Lord for raising what is an important issue in that context.
	The purpose of my amendment was to try to bring together what we saw as two bits of legislation that were rubbing along each other in an inappropriate way. I know that the noble Lord, Lord Dholakia, is concerned that the Government's amendment slightly expands what is in Section 33 of the 2001 Act. We seek through the amendment to ensure that there is a certification procedure for appeals involving all exclusion cases. We are trying to ensure proper safeguards in all such cases and, in a sense, to try to tidy up the statute book. That is not quite consolidation in the way that the noble Lord, Lord Avebury, seeks, which we have already addressed during the passage of the Bill, but we are trying to tidy it up.
	On the particular question raised by the noble Lord—that the UNHCR's paper suggested that it appears that only those who have been in power in a state or a state-like entity, for argument's sake, are capable of committing such acts—it is clear that in the case of KK v Immigration Appeals Tribunal, that was rejected. The tribunal stated:
	"owing at least partly to the growth of terrorist activity, it is now accepted by almost everybody that the meaning of Article 1F(c) is not so confined . . . we are perfectly content to hold that a private individual may be guilty of an act contrary to the purposes and principles of the United Nations, and we see no difficulty in reading the words in this way . . . we should have some difficulty in confining 1(F)(c) to individuals who control States".
	That is a clear indication of how we have sought to address questions about Clause 52, interpretation and the dialogue that we have with UNHCR in London. That dialogue continues. We seek to ensure that it is fully aware of what we seek to do and why, but there are areas in which we have a fundamentally different view. I cite that as an example where we have looked carefully to interpret who is covered.
	I do not really know what else I can say to the noble Lord, Lord Dholakia. We disagree. It said in my briefing that there should be part of our proposals that the Liberal Democrats, in particular, would like—not least the removal of the judicial ouster, which I thought would be dear to the noble Lord's heart, but it is clearly not dear enough. The purpose of this group of amendments is to try to make the legislation work more effectively. I hope that, reflecting on that, the noble Lord will not press his amendment.

Lord Dholakia: My Lords, I thank the Minister. I have no doubt that we will come back to this matter later, but, in the mean time, I shall not move my amendment.

On Question, amendment agreed to.
	[Amendment No. 47 not moved.]

Baroness Ashton of Upholland: moved Amendment No. 48:
	After Clause 52, insert the following new clause—
	"REFUGEE CONVENTION: CERTIFICATION
	(1) This section applies to an asylum appeal where the Secretary of State issues a certificate that the appellant is not entitled to the protection of Article 33(1) of the Refugee Convention because—
	(a) Article 1(F) applies to him (whether or not he would otherwise be entitled to protection), or
	(b) Article 33(2) applies to him on grounds of national security (whether or not he would otherwise be entitled to protection).
	(2) In this section—
	(a) "asylum appeal" means an appeal—
	(i) which is brought under section 82, 83 or 101 of the Nationality, Immigration and Asylum Act 2002 (c.41) or section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68), and
	(ii) in which the appellant claims that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom's obligations under the Refugee Convention, and
	(b) "the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951.
	(3) The Asylum and Immigration Tribunal or the Special Immigration Appeals Commission must begin substantive deliberations on the asylum appeal by considering the statements in the Secretary of State's certificate.
	(4) If the Tribunal or Commission agrees with those statements it must dismiss such part of the asylum appeal as amounts to an asylum claim (before considering any other aspect of the case).
	(5) Section 72(10)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal: Tribunal or Commission to begin by considering certificate) shall have effect subject to subsection (3) above.
	(6) Section 33 of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (certificate of non-application of Refugee Convention) shall cease to have effect."
	On Question, amendment agreed to.
	Clause 53 [Deprivation of citizenship]:
	[Amendments Nos. 49 and 50 not moved.]
	Clause 54 [Deprivation of right of abode]:
	[Amendments Nos. 51 and 52 not moved.]
	Clause 55 [Acquisition of British nationality, &c]:
	[Amendments Nos. 53 and 54 not moved.]

Lord Lyell: My Lords, I advise the House that there is a misprint in Amendment No. 55. I am given to understand that it should read:
	" Page 30, line 27, leave out "1(3)" and insert "1".

Lord Avebury: moved Amendment No. 55:
	Page 30, line 27, leave out "1(3)" and insert "1(1)"

Lord Avebury: My Lords, I am most grateful for that small correction, which I spotted this morning after the Marshalled List appeared. We accept the correction that the Lord Chairman described.
	We welcome the Government's Amendment No. 58, to remove "4B", which will have the effect of allowing British overseas citizens with no other nationality to retain their right to register by entitlement and not to have to pass a good character test. The amendments that we are discussing seek to do the same for other groups: babies under 12 months, Gibraltarians, children and others. In the case of any of the groups covered, it is not appropriate to restore in secondary legislation rights that are being removed in primary legislation, when Parliament can simply refrain from taking their rights away in this Bill.
	Clause 55 extends the statutory requirement that an applicant must be of "good character" in granting British citizenship to all cases, save those where British citizenship is granted because of the UK's ratification of the UN Convention on the Reduction of Statelessness. "Good character" takes in matters far beyond terrorism, as I know from experience of discretionary applications for British citizenship, where minor discrepancies in filling in the form are on occasion treated as evidence of untrustworthiness. A rejected applicant has no way of contesting the decision, because he is not given the reasons. The clause extends far beyond what is necessary to counter a terrorist threat. We should avoid creating new bureaucratic barriers to citizenship where there is no evidence of need.
	Other than birth, a person can only acquire British citizenship by either registration or naturalisation. Up to now, the "good character" requirement has applied only to those seeking naturalisation as a British citizen and not to those seeking to register as British. The process of registration is either discretionary or by entitlement. Clause 55 applies the "good character" requirement to both, as well as to naturalisation, thus ending the practice of registration by entitlement, a category named as such in statute, in recognition of special obligations to allow certain categories of person to become British in this way.
	The government amendment to leave out "4B" demonstrates that the specific groups losing their rights to register by entitlement are tightly defined in the clause. When it was pointed out to the Minister that, as drafted, the clause would subject babies to a good character test, she said:
	"Concern has been expressed that we would extend the rule to very young children or even babies—that was raised with me yesterday. Of course, the rules would state that that would be a silly thing to do, and it would not happen".—[Official Report, 19/1/06; col. GC 279.]
	If it is "silly" to include a particular group, then why first include that group within the scope of the Bill and then knock them out again by administrative decision—in guidance still to be drafted by officials—when Parliament itself has the opportunity not to allow silly laws to get on to the statute book in the first place.
	In Amendments Nos. 56, 61 and 65 we remove the subjection of babies under 12 months to a good character test. Section 3(2) of the British Nationality Act 1981 entitles babies born outside the UK to a British parent who is British by descent—that is, who does not automatically pass on their British citizenship to their children—to be registered within 12 months of birth. Section 17(2) makes similar provision in respect of British Overseas Territories. Article 6 of the Hong Kong (British Nationality) Order 1986 is entitled "Provisions for reducing statelessness". Article 6(3) says:
	"A person born stateless on or after 1st July 1997 outside the dependent territories shall be entitled, on an application for his registration as a British overseas citizen made within the period of twelve months from the date of the birth, to be registered as such a citizen if the requirements specified in paragraph (4) below are fulfilled in the case of either that person's father or his mother".
	Thus, our amendments concern not only babies, but stateless babies. To include these babies in the Bill is not merely "silly", but it risks making people stateless. It is a simple matter to take them out in the way suggested.
	The second group of amendments removes the subjection of children to a good character test—Amendments Nos. 55, 57, 60 and 62. I apologise again for the minor error that crept into Amendment No. 55, which I fortunately spotted in the Marshalled List this morning. Section 1(3) of the British Nationality Act 1981 allows children, and only children, to register if their parents become British citizens or are granted settlement—indefinite leave to remain—in the UK. Section 15(3) makes similar provision for British Overseas Territories citizens.
	Section 3(5) makes provision for children, and only children, born outside the UK to a British parent who is British by descent and thus cannot automatically pass on their nationality to their child to be registered, if the family has returned to the UK and has lived here for at least three years. The equivalent provision for British Overseas Territories is Section 17(5). Should a child be put to the risk of losing an entitlement to register as British simply because he or she might fail a good character test? These amendments solve that problem and retain their right to register by entitlement.
	A growing group of children who will come under Section 1(3) are the children of refugees. When refugees got indefinite leave to remain as a result of recognition, their children were British because they were born to parents settled—that is, with indefinite leave to remain—in the UK. The decision to give refugees five years' limited leave in the first instance means that their children will not be British by birth and will not be entitled to register until their parents get indefinite leave to remain at the end of five years. This places refugee children in a situation of particular difficulty, as refugees are barred, for good reason, from approaching the embassies or government of their former country. In the more distant past, when refugees used to get four years' limited leave before getting ILR, children born to them in those years were in travel and citizenship limbo. If the parents had refugee convention travel documents, it was sometimes possible to get the child included, but most families had to remain in the UK throughout the whole four years. Will the Minister give an assurance that the Secretary of State will exercise his discretion to register the children of recognised refugees who are not yet able themselves to register by entitlement?
	Amendment No. 59 deals with British overseas citizens who fall to be treated as UK nationals for the purposes of the Community treaties. Section 5 of the BNA 1981 provides an entitlement to register for British overseas citizens who fall to be treated as UK nationals for the purposes of the Community treaties—usually they are Gibraltarians. We believe that depriving these people of their entitlement to register breaches Community law. Parliament should not allow that to be done in an Act of Parliament, whatever the Government may say about correcting it later by administrative provisions.
	Amendment No. 63 leaves out paragraph (c) of Clause 55(2) and restores the entitlement to register of wives and widows of those who fought in the defence of Hong Kong during World War II. There are hardly any of these people left alive and they probably do not want to come to Britain anyway, but those who do remain are elderly. To take away their rights unnecessarily is disrespectful and insensitive.
	Finally, Amendment No. 64 deals with British nationals other than British citizens, Hong Kong residents and the prevention of statelessness. Section 1 of the British Nationality (Hong Kong) Act concerns Hong Kong residents whose entitlement to register derives from their having a "second class" British citizenship and being, on 4 February 1997, stateless but for that citizenship, and who have not since renounced any other citizenship. We shall have a further opportunity to discuss that in a few moments. To amend the Bill to allow these people to register by entitlement would be in line with the government's amendment to leave out Section 4B. I beg to move.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord for going through the amendments in some detail. We will come to the government amendment, which I hope will go some way to addressing the noble Lord's concerns. I went through this with officials earlier today. The noble Lord has picked out a number of groups for, I am sure, very particular reasons. Perhaps other groups could have been picked out. When we look at government policy on these issues, it is important that we have a consistent and clear approach. I hope that in the amendment that I will move shortly, the noble Lord will see the approach that I have tried to take.
	I hesitate to pre-empt my own words, but when we consider groups such as the wives and widows of those who fought in the defence of Hong Kong, we believe that we have brought them all into the system in one way or another. We do not believe that anyone remains outside. However, I am sure that the noble Lord and others listening to or reading our debate will let me know if that is not the case. As a general point, however, I am deeply reluctant to address the question by seeking to add in different groups. In the next group of amendments the Government address a particular problem rightly indicated to us in Committee, which we have sought to solve effectively. However, I believe that it is right and proper to have the test as I have described.
	The exception I make—and here I probably go off message—is that the noble Lord is right to pick me up on the question of babies. The noble Earl, Lord Listowel, is not in his place at the moment, but I know that he has seen me squirm on a number of occasions when we consider issues involving children. I am not terribly keen on the idea of a character test and in practice it would not be applied to babies. However, in saying that I will be asked, "That is fine for nought to one year-olds. What about two year-olds or three year-olds?" We end up in a very difficult position.
	I pointed out in a recent discussion with stakeholders that there is a difference between a one year-old and a 17½ year-old. The latter may be involved in acts that would be of concern. Perhaps it could be something to do with drugs, or an attack on a particular group of people, or even the young person might be involved with an extreme right-wing organisation. At the age of 17½, people are responsible and it is right and proper for us to think about their character in that context. Therefore I do not want to make a blanket statement to cover everyone from the age of one year to those we now consider to be adults, at the age of 18.

Lord Avebury: My Lords, when the noble Baroness envisages all these 17½ year-old fascists coming into our country and being entitled to register as British, she forgets that the people we are talking about have always had an entitlement to register as British. We do not notice all these fascists taking advantage of their privilege.

Baroness Ashton of Upholland: My Lords, at the risk of upsetting the noble Lord, I was not being frivolous. I am simply trying to indicate that good government is about recognising the importance of looking carefully at those who wish to come to this country in order to become full citizens and to consider the contribution they can make. Whether the noble Lord likes it or not, there are certain individuals that we would want to look at carefully in terms of what they have done and what they can offer or bring to this country. I can think of a whole range of potentially horrible activities that would be a cause for concern.
	However, I accept in principle the proposition regarding children. Personally, I am moving towards considering the age of criminal responsibility, which as noble Lords will know is 10 years old. I do not want to pick an arbitrary age, but I am nervous about babies, toddlers, pre-schoolers and seven year-olds. So this may not, as they say, fly. But there is something about the natural point where an individual attains criminal responsibility. Perhaps that might be the appropriate cut-off point. I am not sure that it would meet what the noble Lord seeks, but I think he understands that I recognise that distinctions must be made between the age categories of children and that there are considerations among the older categories.
	I hope the noble Lord will allow me to think on this a little further. This may mark the end of my career in taking Home Office Bills through your Lordships' House. I shall talk to the noble Lord and to the noble Baroness, Lady Anelay, as well as to members of the Home Office team. I am interested in pursuing the point if I have the support of your Lordships' House in doing so in a right and appropriate way. Beyond that, I am afraid the noble Lord will have to accept that, apart from what I will move in a moment, I am keen that we stick with a clear set of guidelines and a clear understanding of the Government's position. We believe it is right and proper that we do not exempt further groups from the effects of Clause 55. On that basis I hope he is able to withdraw his amendment.

Lord Avebury: My Lords, I always like it when the Minister is herself. She puts a human face on the Home Office, which it earnestly needs. We are grateful for her offer to consider the children, although not right up to the age of 17½. I think it is a brilliant idea that, faut de mieux, the age of criminal responsibility be the age at which someone can properly undergo a character test. That seems like the kind of common sense we would have liked to have thought of. I sincerely hope that by Third Reading the Minister will have been able to formulate this, as she rapidly has in other respects, in the form of an amendment we can look at.
	I am also grateful to her for the assurance that all the categories of people we have described are in fact covered by other means, even though we still think it is absurd to have to take these people out from the right to register, which they have always enjoyed, then put them back in by some other means. We are very pleased that they do get back in. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 56 and 57 not moved.]

Baroness Ashton of Upholland: moved Amendment No. 58:
	Page 30, line 27, leave out "4B,"

Baroness Ashton of Upholland: My Lords, as presently drafted, Clause 55 would extend the requirements for nationality applicants to satisfy the Secretary of State that they are of good character to all such applicants except those seeking to exercise an entitlement derived from the 1961 UN Convention on the Reduction of Statelessness. The Government's Amendment No. 58 would make a further exception in the cases of those seeking to register as British citizens on the basis that they are already British overseas citizens, British subjects or British protected persons and hold no other nationality or citizenship. As noble Lords will be aware, such people frequently have no right of abode in any country. In recognition of this fact, and accepting that we owe a moral obligation towards them as holders of British passports, we changed the law in 2002 to give them an entitlement to British citizenship and thus the right of abode in this country. We also consider that British overseas citizens, British subjects and British protected persons who have no other nationality or citizenship and have not recently and deliberately given up another nationality or citizenship should not in addition be required to satisfy the Secretary of State that they are of good character before they may be registered as British citizens. I beg to move.

On Question, amendment agreed to.
	[Amendments Nos. 59 to 65 not moved.]

Lord Avebury: moved Amendment No. 66:
	After Clause 55, insert the following new clause—
	"AMENDMENT OF SECTION 1 OF THE BRITISH NATIONALITY (HONG KONG) ACT 1997
	(1) Section 1 of the British Nationality (Hong Kong) Act 1997 (c. 20) (acquisition of British citizenship) is amended as follows.
	(2) Subsections (1)(a), (2)(a) and (3)(a) are hereby repealed.
	(3) After subsection (8) insert—
	"(9) A person shall be deemed to have met the requirements of subsection (2)(c) or (3)(c) and shall not be refused under subsection (6) if—
	(a) his father or his mother has been registered as a British citizen under section 1 of this Act;
	(b) immediately before 4th February 1997 the person was not of full age and capacity, or the person was born on or after 4th February 1997 but before 1st July 1997, and
	(c) at the time of the application he is not a national or citizen of a country or territory outside the United Kingdom.""

Lord Avebury: My Lords, this new clause removes anomalies in the British Nationality (Hong Kong) Act 1997. Subsection (2) of the new clause deals with the problem of otherwise stateless British nationals overseas who were not ordinary resident in Hong Kong on 4 February 1997. The exclusion of persons who were not ordinary resident on the qualifying date is intentional, because the purpose was to benefit only those British nationals who had demonstrated their commitment to Hong Kong by maintaining ordinary residence in the territory. However, in the Nationality, Immigration and Asylum Act 2002, by inserting a new Section 4B in the 1981 Act, otherwise stateless British nationals were given a right to register as British citizens, as long as they were solely British, irrespective of where they were resident.
	This created an inconsistency. A former Hong Kong British Dependent Territory citizen, who was otherwise stateless but registered to become a British national overseas, will never have a right to become a British citizen if he was not resident in Hong Kong on 4 February 1997, whereas a former Hong Kong BDTC who is otherwise stateless but simply failed to register as a BNO will have been automatically granted BOC status under Article 6(1) of the Hong Kong (British Nationality) Order 1986. As is the case with other BOCs, BPPs and BSs, holding one of the latter categories of British nationality gives an entitlement to register as a British citizen under Section 4B of the 1981 Act.
	By removing the ordinary residence requirement, the proposed new clause would allow a person from the Hong Kong ethnic minority who was solely British on the qualifying date, 4 February 1997, to register as a British citizen, thus equalising his position with that of those who benefited from Section 4B. That is an argument of fairness.
	Subsection (3) covers persons who were minors on the qualifying date—primarily from Hong Kong's Asian ethnic minorities—and have hitherto been treated as failing to satisfy the test in Section 1, but who have at least one parent who registered successfully under the 1997 Act. The provisions of that Act have resulted in an injustice and created a number of split families in the ethnic minority community in Hong Kong. In all cases where the parent was born, naturalised or registered as a British national in Hong Kong, the child born to such parents after they registered under the 1997 Act would automatically become a British citizen by descent, whereas a child born before the 1997 Act has no entitlement to become a British citizen. Those children, some of whom are now adults, are left in a position where they are now de facto stateless.
	A discretionary registration concession was made in 1992 to remedy split families. It resulted from the provisions of the British Nationality (Hong Kong) Act 1990, as referred to obliquely in an Answer to my noble friend Lord Lester by the noble Lord, Lord Bassam, on 31 January 2000 at column WA 7 of the Official Report. Subsection (3) of my proposed new clause would extend a similar registration entitlement to remedy the split families which have resulted from the British Nationality (Hong Kong) Act 1997 and rectify the position of a small number of British nationals in Hong Kong who are presently de facto stateless. The concession is important. It takes into account the special circumstances of the ethnic minorities in Hong Kong and is consistent with the commitments that we made to this group in the run-up to the handover to China in 1997. It would apply to a small, closely defined group whose only nationality is British. The amendment contains adequate provisions to prevent abuse; namely, that either the father or mother of the applicant must have qualified under the 1997 Act; that the applicant must be solely British on the date of the application; and that the person must have been a minor immediately before 4 February 1997 or born before the hand-over.
	After I tabled this amendment, a new Annex H to Chapter 14 of the Home Office Nationality Instructions appeared on the IND website, which I saw for the first time yesterday evening. This acknowledged at last—I had been trying to persuade the Home Office of it since October 2004 in literally dozens of Questions and at a meeting with the previous Minister, Des Browne, on 2 February 2004—that Indian minors who were registered as BN(O)s in Hong Kong forfeited their previously held Indian citizenship and were therefore entitled to register as British citizens. The delay arose after the Government sent a note verbale to the Indian authorities which asked them to clarify the meaning of their citizenship law, because at the time when BN(O) status was invented, they had said that the person concerned would retain their Indian citizenship, not clearly understanding that BN(O) status could be obtained only by registration and not by birth. We had said all along that this would be the answer. Since the applications by these people for registration as British citizens are now admitted to have been wrongfully refused, I hope that the Minister will assure me that arrangements have been made to grant the claims without requiring the applicants to make further submissions, because the refusals were unlawful and therefore void, as provided in paragraph 6.8.3 of the nationality instructions. It would be outrageous if these people, having been deprived of their rights since 1997 or 1998, were now to be charged another £250. Subsection (3) of the proposed new clause may no longer be necessary as a result of this development.
	Considering that Ministers have inadvertently misled Parliament since 27 October 2004 by stating repeatedly that Indian minors who acquired British nationality by registration did not lose their Indian citizenship, will the Minister tell me when a statement will be made which corrects these misunderstandings as provided by standing orders? I beg to move.

Baroness Ashton of Upholland: My Lords, I shall begin with the substantive issue and move on to the question that the noble Lord rightly raised. As the noble Lord indicated, the 1997 Act created an exception to the general rule at the time that British citizenship should be available only to those with a close connection to the United Kingdom. That was due to the particular concerns about those people's post-1997 future in Hong Kong. It was considered appropriate to extend eligibility to those in the territory who had former British nationality and who otherwise would have been stateless. The provisions of the Act are directed very precisely at this group. We see no case for extending the class of persons eligible for British citizenship under the Act given the guiding principle that British citizenship should normally be restricted to those having close connections with present day British territory, which Hong Kong is not, and the absence of any indication that conditions for non-Chinese residents in Hong Kong have deteriorated since handover in 1997 or that the non-British children of British citizens there face a particularly uncertain future, such as might justify a further exception to the principle in paragraph (a). I am not taken by the substantive amendment that the noble Lord has put forward.
	On the particular point that the noble Lord raised in relation to Indian citizenship, he has been proven to be precisely right. He has received a letter today from my honourable friend Mr McNulty who outlined the steps that the Home Office proposes to take to bring this development to the attention of those affected. A press notice is being issued in Hong Kong. As the noble Lord said, details are being posted on the websites of the British consulate general there and of the IND directorate in the UK, to which the noble Lord referred last night. I want to be clear that this is not about the Government misleading Parliament in any deliberate way. I know that that is not what the noble Lord suggested. Officials have held lengthy conversations and discussions with their Indian counterparts.
	The noble Lord, Lord Avebury, will know that this issue came to my attention only when he raised it in one of our discussions between Committee and Report. It was clear that at that point we were waiting to get a definitive response from the Indian Government, which it was right and proper for us to do. I live in the anticipation that my speaking to the noble Lord in this open way will suffice rather than a statement from the Government, but the noble Lord will have to make up his own mind about that and press the matter if he wishes. I know that he is going to bring out the Companion as he has already indicated that it gives clear and strong advice on the issue. Of course, I shall convey that point to my colleagues in the Home Office to see what they wish to do, but I hope that, whatever they decide to do, the noble Lord will accept that, procedurally, we have followed an appropriate course, which was to wait for the Indian Government to give us a definitive response and then to act with as much speed as we possibly could.
	When requested to do so, the Home Office will reconsider applications for British citizenship that were refused on the basis of the advice that we received from the Indian Government in 1997–98. I do not have an answer today to the cost question that the noble Lord raised. I will ensure that I write to him on that. He referred specifically to those who had already paid money. As I say, I do not have an answer to that at this point. I hope that, given our speedy response on the websites, what we are seeking to do with the British consulate general and the fact that my honourable friend wrote immediately to the noble Lord to recognise the position, he will consider that, although it may have taken some time, the Government, having got the definitive advice—it was right and proper to do so—acted accordingly. But on the substantive point, the noble Lord will understand that I hope he will feel able to withdraw the amendment.

Lord Avebury: My Lords, I am most grateful to the noble Baroness. As she said, I was thumbing through the Companion while she was speaking. I refer her particularly to paragraph 4.72(2), which states:
	"It is of paramount importance that Ministers should give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity".

Baroness Ashton of Upholland: My Lords, I thought that I had corrected an inadvertent error at the earliest possible opportunity.

Lord Avebury: My Lords, the noble Baroness has indeed done so and I am hoping for the avoidance of doubt that her honourable friend Mr McNulty, in addition to writing me a letter might feel able to make a Written Statement in another place, so that those concerned with these matters would also have knowledge of what has been decided. At the moment, as the noble Baroness said, the Minister has addressed to me a private letter which has been discussed in general terms but which is not physically on the record in the sense that Members of another place can refer to it.
	I am obviously disappointed by what the noble Baroness said in reply to the earlier parts of the new clause. I will have to think about that. But with regard to the main issue I am delighted that after 18 months' work at last the claims of these people have been recognised. I request the noble Baroness to confirm to me in due course—not this evening—that they will not be charged another £250 and that a mere notification by the individuals concerned to the local consulate where the application was originally lodged will be enough to set the application in motion again. As I said, under the normal procedures it is recognised that to have been unlawful a decision falls to be reconsidered by the authorities that were looking at it in the first place once the matter has been drawn to their attention. It may be that some of the individuals no longer wish to pursue it, but if the persons notify the local consulate that they wish to pursue the matter, it should be taken forward without further form filling or bureaucracy. I hope that at some convenient date nearby the noble Baroness can notify me accordingly. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury: moved Amendment No. 67:
	After Clause 55, insert the following new clause—
	"AMENDMENT OF SECTION 4C OF BRITISH NATIONALITY ACT 1981
	After section 4C(4) of the British Nationality Act 1981 (c. 61) (acquisition by registration: certain persons born between 1961 and 1983) insert—
	"(5) An applicant is also entitled to be registered as a British citizen if he or she is the brother or the sister of any person who satisfies the three conditions set out in subsections (2) to (4).""

Lord Avebury: My Lords, the British Nationality Act 1981 equalised the right of a child born overseas to parents, one of whom was British, whether that parent was the mother or the father. In either case, the child, born after 7 February 1961, could be registered as a British citizen by the parents up to the age of 18, but if the mother was British and the father was foreign they could not do so. That position was corrected in the 2002 Act.
	We argued that there was still discrimination, in that if the child's right was derived from his father, he could be registered as a British citizen because of his ancestral connection, irrespective of whether it was done on his behalf by his parents when he was a minor, or by himself as an adult. In the 2002 Bill Committee stage the Government accepted the case in principle, tabling their own amendment on Report, which is now Section 4C of the British Nationality Act 1981.
	The problem with that solution was the cut-off date, which led to a situation where children born after 7 February 1961 were entitled to British citizenship, while children born before that date had no rights. There are several cases where siblings in the same family are divided in that way into sheep and goats. For instance, Michael Turberville, who has given me permission to cite his case, and who is the chairman of CAMPAIGNS, the NGO that promotes the rights of the 1981 Act orphans—so to speak—now has British citizenship because he was born in 1967, but none of his elder brothers and sisters qualified: David, born in 1945; Freda, born in 1946; Sandra, born in 1949; Maryann, born in 1952, and Philip, born in 1957. Mr Turberville says that about 150 members of his organisation are excluded from British citizenship by the cut-off date.
	One mother whose family is affected, Mrs Constance Salgado, who lives in Colombia, had children on either side of the cut-off date and is seeking to formulate a complaint against the UK under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. But the Government, knowing that they would otherwise have been in breach of an international obligation, entered a reservation to CEDAW allowing them to discriminate in nationality law.
	The only reason that was given by the noble Lord, Lord Filkin, for turning down the proposal the last time that I raised it was:
	"One can only go so far back in seeking to right the wrongs of history and of previous generations".—[Official Report, 31/10/02; col. 298.]
	To remove discrimination in our nationality law that affects only a small number of people still alive and nobody from any previous generation is surely something that any listening Minister should accept. This Minister went a little further than the noble Lord, Lord Filkin, when she explained in a discussion that we had that—I am paraphrasing what she said—although it is agreed that very few children born abroad to British mothers and foreign fathers would benefit from the removal of the cut-off date and therefore it would have no implications for immigration policy, there could be repercussions in the drafting rules that apply to all statutes. My first reaction was that we could achieve the same end result without tampering with the time limit through the formulation in the first of the amendments. Then I realised that in many cases all the children in the family could have been born before the cut-off date, and the purpose of the second amendment is to move the date back so that all but the very old would be covered. Mr Turberville tells me that all the members of his CAMPAIGNS group would be included if the cut-off date was moved, as I suggest, back to 1931.
	Common sense tells us that most of the children born between 1931 and 1961 who would be able to register under the amendment would not bother, since they have held another citizenship for the past 44 years. However small the number affected, this is worth doing to eliminate what I hope is the only remaining piece of sex discrimination in our nationality law and to enable us to rescind our reservation to the CEDAW and its optional protocol. I beg to move.

Baroness Ashton of Upholland: My Lords, the noble Lord is extremely tenacious in the way in which he deals with issues. I can always rely on him to come up with another solution. Before I start on this, I want to say something further in the interests of telling the noble Lord as quickly as I possibly can about the issues that he raised in the last group, although I am sure that I am breaking all kinds of procedure. This is to do with those people that the Indian Government have now given a different status. On the record, I say that there will be no further charge and mere notification will be sufficient. I think that the noble Lord and Members of your Lordships' House would want to hear that immediately. I have just had that advice, and I am very grateful to my officials for doing that so speedily.
	Having made the noble Lord happy on one thing, I am now going to take away his happiness—I know that the noble Lord will not be surprised by that. I am grateful to him for talking this through with me on a number of occasions. I have heard a number of times as a Minister that, "it will affect only a small number of people". The noble Lord is of course correct on that. When you look across all of government policy, not least in this area which is quite complicated and important to try to get right, there are lots of potential issues where only a small number of people might be affected and where the noble Lord, in looking back on the amendments that we have already discussed and some that we may discuss on Third Reading, might say that only a small number of people are affected so therefore why on earth should the Government hold back on giving in.
	The reasons are various. I think that the noble Lord had a hand in the decision to make the date 1961 in the first place. It is also important to recognise, as my noble friend Lord Filkin said, that we cannot undo everything that went before. As a woman, I can think of lots of legislation that I would like to go back over, going back several hundred years—and I suspect that the noble Baroness, Lady Anelay, could think of some too—that might still have some resonance for us today. There is a principle about people getting their citizenship as individuals and not because they happen to be related to someone else as adults. It is different with children; we have had a lot of discussions about children and the noble Lord knows that I am concerned that we keep that under review. As adults and real grown-ups—because they are pre-1961 so they are nearly as grown up as me—they are able to think about their entitlement as an individual and not just because they happen to have a connection with a sibling.
	Although the noble Lord has tried to be very ingenious, as ever, in the way that he has approached this, I am going to resist it on the basis both that we cannot simply move policy around on the grounds that it affects only a few people, and that we have made a substantive approach to try to redress a problem, which was sexism and nothing else as far as I am concerned, in the right way. It is one that the noble Lord had a very strong hand in.
	I cannot move any further when I fundamentally believe that, as grown-ups and adults, not merely as siblings, people should consider their own position in that context.
	I know that that disappoints the noble Lord. He knows how much I try, particularly at this time of night, not to disappoint him, but I fear that I must do so on this occasion.

Lord Avebury: My Lords, I cannot help observing, as my noble friend Lord Dholakia just reminded me, that when it comes to disadvantaging a group of people, however small it may be, there is no problem with the Government finding room for them in the Bill.
	It is not a question of numbers; it is a question of fairness. The cut-off limit is not fair—it divides siblings in the same family, and it is unnecessary. I cannot see the logic of the Minister's statement that there are many other areas in statutes where relaxation of the time limit would have repercussions. So what? I cannot see the connection. However many times we argue about this on the Floor of the House, either with the noble Lord, Lord Filkin, or the noble Baroness, she, at least, has tried to explain the thinking behind this matter, with only partial success, because I still find it incomprehensible that she has not conceded on the amendment.
	I shall have to go back to Mr Turberville and his campaign group and make them extremely disappointed; but I assure the noble Baroness that this will not be the last time we raise this matter. However old these people are, they still want to be in the same country as their siblings and it is wrong and unjust for Parliament to deprive them of that right. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 68 not moved.]

Lord Hylton: moved Amendment No. 69:
	After Clause 56, insert the following new clause—
	"DETENTION
	Asylum applicants falling within the vulnerable categories, as defined by the United Nations High Commissioner for Refugees, shall only be detained before or during the determination of their cases if an independent medical practitioner has certified that detention will not harm their mental or physical health."

Lord Hylton: My Lords, I was mildly encouraged when I noticed that the Minister had two or three supporters behind her; but they have somehow melted away. She will now understand why I said to her in an earlier conversation that we would need two days for Report stage on this controversial, complex and difficult Bill.
	This is a simple and, I hope, humanitarian amendment. The UNHCR has for a long time defined the kinds of asylum applicants that the commissioner considers to be vulnerable. These include the elderly, torture survivors, children, women who have suffered rape or who are pregnant, and people with serious health needs. Such conditions are made worse when those affected speak and understand little English. Bail for Immigration Detainees is a small English charity. In one year, it was approached by some 1,100 detainees, many of whom were in the conditions that I mentioned.
	In May 2005, Médecins Sans Frontières reported on 13 adults and three children, all with health needs. Their detention lasted from 40 to 270 days, with an average of 250. The report commented on the apparent lack of means to secure appropriate medical care and protection. In February 2005, Save the Children estimated that 2,000 children are detained with their families each year. Studies of 32 cases showed that children can and do remain in detention for long periods.
	I hope that I have said enough to show that health and vulnerability are urgent problems that are often overlooked. My amendment offers a way of preventing harm and unnecessary suffering. There should be a thorough medical check before vulnerable people are locked up. If the Government believe that some vulnerable people will abscond if they are not detained, surely some combination of reporting and tagging could be devised to meet a few exceptional cases. As more people are expected to be detained each year from now on, health cases are likely to multiply, making my amendment still more necessary.
	The amendment is intentionally limited to asylum applicants and, in particular, to those whose cases have not yet been determined. Perhaps it should go a little further—I do not know. As it originates from the direction of the UNHCR and as two of your Lordships with very considerable medical experience—the noble Lords, Lord Rea and Lord McColl of Dulwich, although they are not in the Chamber—have expressed to me support for it, I hope that it will commend itself to the Government. I beg to move.

Baroness Anelay of St Johns: My Lords, I shall break my silence for the past half hour, although at this hour I shall be brief. I am grateful to the noble Lord, Lord Hylton, for tabling the amendment. He always challenges the House on humanitarian issues by bringing forward amendments that make us reconsider previous positions that we have taken on policy, which is very important. He is very—I am trying to find a polite word—clever at finding ways of doing it that are within the correct rules of the Bill. The amendment is certainly well founded.
	To be picky, I find it difficult to know how the amendment might be properly applied. For example, if I were an independent medical practitioner and I were asked to certify that detention would not harm someone's mental or physical health, I would wonder for how long into the future I would have to provide that certification. Normally, a medical practitioner would certify the condition of a person only at that moment. We do not know how long a person may be held in detention. As the noble Lord has said on many occasions, detention should not take place anyway; if it does, it should be as brief as possible. I see that the noble Lord wishes to rise. This is Report, so I shall be brief. I know that he is trying to raise the threshold of how we approach people in the vulnerable group.
	Vulnerable people who may be taken into detention—perhaps children or people who are vulnerable for other reasons—may be part of a family group. If one is a medical practitioner, one is then in the unenviable position of certifying the vulnerable person as someone who should not be subject to detention. What then happens to the remainder of the family group? Are they split up? I suspect that the noble Lord, Lord Hylton, would say that none of them should be in detention. These are very difficult questions that any government would have to address.
	It is important that amendments like this give us the opportunity to consider the arguments put forward by the Bail for Immigration Detainees organisation, which is excellent in its briefing. The amendment also gives us the chance to ask the Government tonight to explain what the current condition is and what systems are in place to provide the protections that the noble Lord, Lord Hylton, asks for. It would then be up to individual Members of the House to decide whether they think that the Government have shown there is sufficient protection to make it possible for us to reject the noble Lord's amendment or whether it needs to be considered further at Third Reading. I know that the noble Lord, Lord Hylton, is a master at refining amendments for Third Reading and I do not believe that the new rules on Third Reading will hold any fear for him at all.

Lord Dholakia: My Lords, I support this amendment. The noble Baroness, Lady Anelay, was right when she referred to the period of detention that would affect mental or physical health. I have been aware of a substantial number of cases—the Medical Foundation for the Care of Victims of Torture has a record of them—that clearly explain the effect of detention on children. To my mind, children should not be in detention, full stop. It is important to recognise that there are cases which can give us a direction on this particular matter. It is right and proper that the attention of the Government is drawn by the noble Lord, Lord Hylton, to these particular practices.

Baroness Ashton of Upholland: My Lords, the one thing that I have never thought the noble Baroness, Lady Anelay, as being is picky. Far from it; indeed, I think that the noble Baroness captured a really important issue, which I hope the noble Lord, Lord Hylton, will reflect upon: the difficulty for medical practitioners of trying to prove a negative. I doubt that we would have many offers of support from the medical world. In my experience as chair of a health authority, I have dealt with some amazing and fantastic doctors, who felt very strongly about what their role was and how best to fulfil it. It is incredibly difficult, not only in the time available, but in any event, to prove that point, so I have some difficulties with it.
	I rise to the challenge of the noble Baroness, Lady Anelay, which is to set out what the Government will do. I hope that the noble Lord will feel that we recognise what I think is of the essence in this amendment, which is to make sure that people have proper access, at the appropriate moment, to medical support, and that we are fully aware of the condition that those people are in and of the appropriateness of what we are proposing.
	The noble Lord himself referred to those who are considered unsuitable for detention. That is covered within the operational instructions, where there is clear guidance to immigration service staff about who would normally be considered unsuitable for detention: pregnant women; victims of torture; those with serious medical conditions; the mentally ill; the seriously disabled; and the elderly. I think that is quite a substantial group of people to be normally considered inappropriate for detention. They would not be ruled out completely, because there might just be circumstances—and I think that noble Lords on both sides would understand why we do not rule out detention in all circumstances for all people—where it was appropriate.
	The officers who deal with these cases have to weigh up the different factors for and against detention and make an individual judgment as to whether it would be appropriate, within the guidelines that I have indicated. When a detainee arrives at a removal centre they receive a medical examination and have access to good-quality healthcare throughout their detention, including secondary care at a hospital, should they need it. Any concerns that a person's physical or mental health may be affected adversely by detention must be reported on arrival or at any point during the course of detention. Any such reports have to be considered very carefully in deciding whether to maintain that detention.
	We believe that to be the best and most appropriate way of dealing with this. The logistics, aside from what I have already said about the medical profession, of where one would try to put the amendment into action would be very difficult. Who would fund the medical practitioners? Where would they be? How many of them would we need? Where would they conduct their examinations—at every port, enforcement office, screening unit and police station across the country? What if somebody said that they did not want to be examined? What should we do then? As I have already indicated, there is the difficulty for the medical practitioner of trying to prove what is essentially a negative.
	We think that once we have decided—within the guidelines that I have described—to detain someone, giving them a medical examination on arrival, ensuring that they have good access to healthcare and addressing all concerns both on arrival and in the course of their detention is the right way of involving the medical services that we wish to involve and of providing proper and appropriate care for those individuals who are being detained, I hope for as short a time as possible. I agree completely with the spirit of what the noble Lord is seeking to do; I also agree with the noble Baroness, Lady Anelay, who said that the noble Lord always brings us back to the humanitarian aspect. I think that we have resolved it in—dare I say it—a more practical way: involving the medical services appropriately and supporting vulnerable people. On that basis, perhaps the noble Lord can withdraw his amendment.

Lord Hylton: My Lords, I accept that I should, very likely, have framed the amendment the other way around. I will reflect carefully on everything that has been said. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hylton: moved Amendment No. 70:
	After Clause 56, insert the following new clause—
	"DETENTION CENTRES: REVIEW
	After section 153 of the Immigration and Asylum Act 1999 (c. 33) (detention centre rules) insert—
	"153A CHALLENGING DETENTION
	The manager of every removal centre shall make provision for duty legal representatives on the Legal Services Commission's rota scheme to see every detained person in his removal centre once in every month for the purposes of—
	(a) establishing whether they have legal representatives able to advise them on bail and represent them at a bail hearing;
	(b) where they do not—
	(i) advising them as to the prospect of success of challenging whether the original decision to detain was reasonable;
	(ii) advising them as to the prospect of success of challenging whether, in all the circumstances, continued detention is reasonable;
	(iii) ensuring they are aware of the procedures for applying for bail;
	(iv) making arrangements to represent them at bail hearings before immigration judges where such hearings take place within the detention centre;
	(v) facilitating their representation or attendance or both at bail hearings where sub-paragraph (iv) does not apply.""

Lord Hylton: My Lords, this amendment is tabled by way of a further probe to obtain firmer assurances than we were given in Grand Committee and in the Minister's letter to me of 31 January. It adds a further section to the 1999 Act. We want to know beyond all doubt that no one is detained unnecessarily or unreasonably. Apart from issues of personal liberty and innocence, it costs more than £800 to detain a person for one week. We want to be certain that every detainee knows of the possibility of bail and gets bail if he qualifies for it. We seek assurances that there will be effective consideration initially and at monthly intervals of the need for detention and of its continuing reasonableness.
	I underline the seriousness of these matters by pointing out that there were seven self-inflicted deaths in detention between January 2003 and September 2005. Detainees feel powerless and desperate. A government must take account of the following important guidelines and convention points. I mention in particular Article 5(4) of the European Convention on Human Rights; the UNHCR's guidelines on criteria for detention of asylum seekers dated 1999; Guarantee 3 of the UN Working Group on Arbitrary Detention; and, finally, the Council of Europe's 20 guidelines on forced return of May 2005. All these call for challenges and reviews of detention to be heard by a court.
	If the Government do not pay attention to these documents, they will be wide open to criticism of the kind already made by Mr Gil-Robles, the Council of Europe's Commissioner for Human Rights, in June 2005. He pointed out that, in December 2004, 55 people had been detained for more than one year and that 90 were detained for between six months and one year. He recommended judicial review in all cases exceeding three months, with free legal aid. I beg to move.

Lord Avebury: My Lords, I warmly support the amendment. We have discussed this matter a great many times and have all condemned the long periods of detention that people must suffer under the immigration rules and the lack of access to proper legal advice and assistance in applying for bail. It results in the extended periods of detention mentioned by the noble Lord, Lord Hylton. We do not even have proper statistics showing how long people have been held in custody. We receive merely immigration statistics showing how many people are in detention centres and for how long those people in the snapshot have been held.
	When we discussed this subject on the 2002 Act, we received far more from the noble Lord, Lord Bassam. We were provided with a vignette showing the number of people detained, for what period and how many were under 18. We asked at the time, "If you can do this on the particular occasion of a Bill passing through the House, why can't you do it on a regular basis and why can't these statistics be published as part of the quarterly information from the Immigration and Nationality Directorate?"
	It is a serious matter because, as the noble Lord, Lord Hylton, commented, some people commit suicide because of the length of time they have been in detention. I point out to the Minister that in her latest report on Harmondsworth, the Chief Inspector of Prisons mentioned suicide 19 times. That followed a case in 2004 where an inmate committed suicide. As the noble Baroness will probably recall, there were serious disturbances after that in Harmondsworth. But the lessons do not seem to have been learnt, because a few weeks ago there was another suicide in Harmondsworth followed the day after by an attempted suicide. Obviously part of the reason for these phenomena is that people feel hopeless and deserted and that they cannot gain proper access to outside help.
	The Home Office is considering a scheme to allow rota solicitors to go round the detention centres and to take instructions on bail. That goes part of the way towards what the noble Lord, Lord Hylton, seeks. If such a scheme gets under way, it will be extremely welcome and may help to relieve some of the enormous caseload with which BID constantly seeks to cope. As the Minister is probably aware, BID is a small charity which attempts to help people by putting them in touch with solicitors wherever possible and by finding sureties for them. If that can be dealt with on a more organised and thorough basis through the duty solicitors who will go into the detention centres, I should warmly welcome it. I am sure that BID would, too, as would all the thousands of people who suffer detention every year.

The Earl of Sandwich: My Lords, I have put my name to the amendment as I have to many of its predecessors. As the noble Lord, Lord Avebury, knows, it is the recurring amendment but I am not inhibited by that from expanding on the details of the amendment. It emerged from a conversation between the noble Lord and the legal agencies involved. I am fully aware of the points made by the noble Baroness in responding to our debate on 17 January and in subsequent correspondence. The Minister referred to the information provided in all removal centres and to the IND information pack. She also mentioned on-site legal advice provided by the various legal services of which I am well aware. However, this does not address the fundamental argument which we made in Committee about detainees' regular access to justice as a human right rather than an available service.
	We made the point strongly that the experience of the specialised legal agencies such as BID is that many detainees are not taking advantage of these services for reasons that have already been explained by the noble Lord, Lord Avebury, and others. Many have no legal representation.
	We are not now bringing forward the original arguments in favour of regular hearings that the Government, having introduced them in 1999, have already rejected on grounds of economy and practicability. The proposal under the amendment is much more practicable and might therefore appeal to the Minister. It is that she considers simply making use of the duty rota currently being piloted by the Legal Services Commission, by extending it to have a duty legal representative available one or two days per week for detainees who have no legal representation and who wish to challenge their detention before an immigration judge.
	Duty legal representatives could thus not only advise detainees on bail but also represent them at bail hearings. This could be done, for example, in the IRCs which have asylum immigration tribunal hearing rooms attached and where immigration judges already attend on a regular basis at, for example, Harmondsworth, Colnbrook and Yarl's Wood.
	Last October, the LSC itself accepted that there was insufficient legal representation in removal centres. Having a special interest in Haslar, I know that there are difficulties with obtaining adequate advice there and, I understand, at Lindholme. However, the other IRCs mentioned have a rota on two days per week and there is a large demand for this service. There are on-site AIT courts close to Harmondsworth and Colnbrook and also at Yarl's Wood which has on-site hearing rooms. I understand that both sets of hearing rooms are currently in use and have judges sitting five days per week. This should meet previous government concerns about the complexity and cost of providing access to the bail procedure. I know that the Minister did not say this herself but her colleagues in another place have referred continually to complexity and cost. A bail hearing is much cheaper than a substantive asylum appeal and may of course offset the cost of detention itself.
	Finally, Her Majesty's Chief Inspector's reports over the past two years contain overwhelming evidence showing that barely half of detainees are making bail applications. I will quote briefly from two examples. Out of 26 detainees seen during an unannounced inspection at Dover last July, only eight said that they had applied for bail and four of those had made their own bail application without a representative. From a survey of detainees at Tinsley House in November 2004, only 6 per cent of respondents had received a visit from a legal representative against a benchmark of 46 per cent.
	The report stated that the number of requests for help to find a representative had risen by more than 50 per cent in the past year but its ability to match need with supply had severely diminished because of the shortage of legal aid practitioners. A similar story was told at Campsfield, Haslar, Lindholme and several other centres. Some of these people are detained for months without any legal representation. I am sure that by now the Minister will be well aware of the problems that detainees have for these and other reasons previously explained

The Earl of Listowel: My Lords, I rise to support the amendment and to highlight the particular concerns for mothers with young children. Most children of mothers in Yarl's Wood centre are under three years of age. When mothers are anxious, it impinges very significantly on the child's life. If they do not have access to legal support and if—this point was made by a governor of such an institution—the Immigration Service does not have people going in to keep those people who are detained for removal informed of how their case progresses, that is very disquieting for them. They have no knowledge of what is going on. They do not know how their case is proceeding.
	Anne Owers gave evidence to Sub-Committee F of the European Union Committee in its inquiry and report into returns. Her first concern was about the lack of legal representation. Joined with that was the complete lack of information about progress with detainees' cases. This causes disquiet to all these people but for mothers with young children we must be very concerned.

Baroness Anelay of St Johns: My Lords, I have surprised the noble Baroness by having something to say again. We return to a very serious issue, which the noble Lord, Lord Hylton, raised in a rather different form in Grand Committee. Certainly, he has very cleverly crafted this amendment to move the debate on further. One of the issues in Grand Committee that I was certainly concerned about was that we would be looking at an amendment to set up a system of review which was simply unsustainable because of the cost and complexity of how the persons were being asked to look at individual cases on a regular basis.
	I fully support the noble Lord's objective underlying the amendment—and that is the usual weasel way of saying, "but I don't support the amendment itself". I support most of what he has in the amendment. I think that he has tried very effectively to address the objections in Grand Committee. In Committee we were all agreed, including the Minister, that what was important was that people should be aware of their right to make a bail application. The difficulty then was how they should be made aware of it. What is the proper way that should happen? The noble Lord, Lord Hylton, has sought refuge in the idea of having a legal aid system through the Legal Services Commission. I shall be interested to hear what the Minister has to say about the Government's proposals. The noble Lord, Lord Avebury, referred in passing to that.
	It is important that the Government put on the record what their thoughts are about making people aware. How often does one make somebody aware on the basis that, if someone is taken into detention, it could be when he is unable to think clearly, as I am at this stage of the night? Perhaps you have been under duress before you have got into that situation. You are certainly worried about your family who might be with you in detention. You may not be capable of taking in what is very clear information given at the time.
	How often should there be a duty on anyone running a detention centre to make somebody aware of what facilities are available to them for making a bail application? What kind of facilities within the centre should be made available; for example, meeting rooms, the ability to meet quietly and not under threat—perhaps not under threat from other people who are in that detention centre as well? One has to be aware that detention centres are not always the most pleasant place to be, from the point of view of different groups who may—I was trying to avoid this phrase, but cannot think of another which serves as well—gang up against each other.
	Throughout it all, this is the real question: is the situation that currently pertains satisfactory? We have all agreed, at least on the Opposition Benches, that it is not. How do we move it forward? It will not be by adopting wholesale the amendment of the noble Lord, Lord Hylton. Yet we need to look at its constituent parts, for he is trying to achieve the right results. It is a case of how the Government can assure us that those objectives are to be met, and how quickly. With the best will in the world, there is a huge churn of people going through detention, yet a residual number are always there far too long. As the noble Earl, Lord Listowel, said, we have to be particularly worried about families with young children, and we know that there are mothers at Yarl's Wood with very young children.
	Throughout all this, I have maintained that I am no bleeding heart for people who have made unfounded applications and simply keep on appealing, trying to hang on here for as long as they can. However, I always have sympathy with the children, because whatever faults the parents may have, it is never the children's fault.

Baroness Ashton of Upholland: Hear hear, my Lords, to the final remarks made by the noble Baroness on children. I knew that we will be coming on to discuss them in our final group of amendments, and rightly so.
	To begin with, we all share a desire to ensure that detainees can get competent legal advice and representation and that they understand their bail rights and their rights to challenge the lawfulness of their detention. I apply that to all sides of your Lordships' House; so, the principle is, in a sense, agreed. We are merely trying to work out the best way to do it within limited resources—I make no bones about that—and within the most efficient and effective use of those resources. As the noble Baroness, Lady Anelay, rightly said, the noble Lord, Lord Hylton, has moved the debate on from the previous amendments in Committee, to try to focus further on those issues.
	Part of that, as I sought to address in Committee, is to try to ensure that when people arrive in detention they get information about bail—that. It is readily available to them and includes copies of the bail handbook produced by Bail for Immigration Detainees, which has been referred to. They should also be given information about how to contact the Immigration Advisory Service to get free legal advice and representation. So we seek to give them information when they arrive, in writing and verbally, and to provide them with advice on bail and legal representation at the same time. That is an important part of what happens to everyone going into detention.
	To pick up on what was said by the noble Baroness, Lady Anelay, about people often arriving in strange circumstances and, perhaps, not being able to deal with those issues as readily or as fully as they might, we seek to make that advice available throughout the process of detention and to make sure that they know about the issue of their representation throughout that process. The IND is producing another information pack for detainees, which will cover a range of different issues pertinent to their circumstances. It will include bail rights and processes and be available in a way which recognises the language differences between detainees. That is an ongoing process, which tries to give information to people throughout.
	I am not taken with the idea of the duty representative scheme for all detainees being used in this area. However, I want to highlight something which may give the noble Lord, Lord Hylton, some comfort. As noble Lords may recognise, we have a pilot running at present that will be evaluated by the Legal Services Commission in June. It is to have on-site advice surgeries for any detainees who do not have an adviser. As the noble Lord, Lord Avebury, knows well, that is being piloted at Campsfield, Colnbrook, Dover, Harmondsworth, Tinsley House and Yarl's Wood removal centres.
	If it is successful, we shall consider whether we can extend it to all centres. Perhaps the noble Lord would agree that if that works, that goes 95 per cent, if not all the way, to addressing his principle. I cannot promise that it will be rolled out, because I do not know what the evaluation will say, so I should be wrong to do that; but I can say that it is a very good example. Those advice surgeries provide the right kind of support for those in detention. They address the underlying question posed by the noble Lord: making sure that people get ongoing, systematic advice that enables them to take up the opportunity of bail if that is appropriate. I hope that that will convince him that we have taken the issue seriously.
	I accept that serious issues need to be addressed here, but have already said that we want to do so in a sensible, targeted way. The combination of provision of support and advice that we already have, plus the opportunity that the pilot will give us, will address the noble Lord's concern, so I hope that he will feel able to withdraw his amendment.

Lord Hylton: My Lords, I thank all those who have taken part in this short debate. I hope that the Minister's suggestion of on-site advice surgeries will work. It strikes me that that will turn on whether there are sufficient interpreters of the right languages to meet all possible needs. I shall reflect further to see whether something simpler could be salvaged from the text of the amendment but, meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Listowel: moved Amendment No. 71:
	After Clause 56, insert the following new clause—
	"IMMIGRATION SERVICE: WELFARE OF CHILDREN
	In section 11(1) of the Children Act 2004 (c. 31) (arrangements to safeguard and promote welfare), after paragraph (m) insert—
	"(n) a regional office of the National Asylum Support Service;
	(o) the centre manager of an immigration removal centre;
	(p) the Chief Immigration Officer at a port of entry.""

The Earl of Listowel: My Lords, the amendment would apply Section 11 to the key elements of the Immigration Service who have day-to-day dealings with children. While fulfilling their primary function, they would have to give regard to safeguarding those children and promoting their welfare.
	It is with regret that I introduce this amendment at such a late stage. I do so because, with the noble Lord, Lord Avebury, I listened to the evidence from the Chief Inspector of Prisons and the Children's Commissioner last Wednesday on Yarl's Wood. Their concern was so well evidenced and deep that I felt that I needed to act to prevent, as far as possible, such circumstances arising again.
	The noble Earl, Lord Howe, moved an identically worded amendment to the Children Act 2004. He said:
	"My Lords, the arguments for this amendment have been well rehearsed at earlier stages and I shall not weary the House by repeating them at length. We have what appears to many, including me, a giant lacuna in the Bill. In the Green Paper, Every Child Matters, refugee children are specifically mentioned as being children in the greatest need, yet the agencies which are charged with looking after them are excluded from the duty in Clause 8"—
	now Clause 12—
	"to safeguard and promote children's welfare. I have read what the Minister said about the amendment on Report. I still find the omission incomprehensible. Why on earth should refugee children be denied the same rights and protection as other children in the UK. The Minister argued that,
	'a duty to have regard to the need to safeguard and promote the welfare of children could severely compromise our ability to maintain an effective asylum system and strong immigration control' . . .
	She went on to argue that in undertaking its primary functions it would be unavoidable that the IND would do things that would be judged as inconsistent with a duty to safeguard and promote welfare.
	"We need to unpack this a bit. The first point is that Clause 8 is not an absolute duty, but simply requires agencies to make arrangements to have regard to the need to safeguard children and promote their welfare in the discharge of their functions.
	"As the Minister said on Report,
	'We have been very careful in the way in which we have worded this clause: we do not put a duty on agencies that would make them unable to fulfil their primary functions' . . .
	Nobody would argue that the primary function of the Immigration Service is not to ensure effective immigration control just as nobody would dispute that the primary function of the police is to ensure public order and prevent of crime. Yet the chief officer of police is included in the new duty in Clause 8(1)(g).
	"We might do well to look at the explanatory notes to the Bill, which state:
	'This duty is intended to ensure that agencies are conscious of the need to safeguard children and promote their welfare in the course of exercising their normal functions'.
	The Government have failed to explain how this duty would interfere with the normal functions of the agencies listed in the amendment".—[Official Report, 15/7/04; cols. 1460-1.]
	I apologise for quoting at such length, but I do not think it could be put more lucidly and rationally than it was by the noble Earl, Lord Howe, on this occasion. Eventually this amendment was put to a Division and was lost narrowly, 90 votes to 99 votes. Indeed, all children should be protected in this way. This is why the Green Paper was entitled Every Child Matters.
	The noble Baroness, Lady Ashton, elsewhere in the course of the Bill—in Committee I believe—said that
	"noble Lords can rest assured that the wording of the Bill covers all children. There are no exceptions; noble Lords would not wish it otherwise, and neither would I".—[Official Report, 4/5/04; col. 1086.]
	I highlight that I tabled this amendment only at the very deadline, last Friday. The Minister has had very little time to prepare a response to this and I apologise. However, I hope that there can be some thought before Third Reading on this matter.
	The noble Baroness, Lady Ashton, also gave an assurance in response to the amendment tabled by the noble Earl, Lord Howe, speaking of the performance of the Immigration Service and of the National Asylum Support Service. She said:
	"I can assure noble Lords that both organisations understand their responsibilities and are strongly supportive of the need to safeguard children and promote their welfare . . . But, ultimately we have an asylum and immigration policy designed to support people in the best possible way".—[Official Report, 15/7/04; col. 1464.]
	I am sure that the Minister said that in good faith. I am sure that all the people in the services seek to consider the needs of children, but they have a strong target to work for—removing families. That is a top government priority and they have to double the numbers of families and individuals returned in, I think, a three-month period. There is no clear counterbalancing measure to ensure that children are protected in that process. We are all human, if we are faced with such a challenge—I will come back to that point.
	The chief inspectors' report—on which I tabled a debate last October—which was published in July of last year, expressed deep concern about this matter. Paragraph 7.3 stated:
	"Even more concerning is the effect of detention itself on a child, which is likely to compromise children's ability to thrive. Children may have had traumatic experiences in their home country before coming to the UK. Inspectors found evidence that the additional effects of restrictions on children's movements and activities and of witnessing their parents' powerlessness had led, in some cases, to eating and sleeping problems and depression".
	The chief inspectors' report also refers to the lack of co-ordination between the local social services and Yarl's Wood, which is lamentable. The most vulnerable children were being dealt with and it was not thought through at the start that there should be a close relationship with the local social services. I apologise for taking far too much of your Lordships' time at this late hour. I do not know how else this important measure can be considered before we complete this Bill and when there would be another opportunity.
	The report cites examples of particular cases. For example, a child who was diagnosed with autism by a psychiatrist was held at Yarl's Wood for five days. The child was not eating properly and was very upset at being placed in such new surroundings. There was no system to identify his weak vulnerability and to remove him tout de suite.
	I know that the Minister in her reply will say that the danger of this amendment is that it will cause delays in the removal process and will prevent the Immigration Service doing its necessary job and its primary function. She will speak from her experience as a previous Minister in the Department for Education and Skills, relating to her experience of what it means to have regard to the duty. The authorities would have to demonstrate that they have given due consideration to the welfare of children in their actions.
	I hope that your Lordships welcome this obligation on the authorities to demonstrate that they have given due regard, which would be a balance to the tremendous drive that they have on achieving their important target of removing families and individuals. Earlier, we discussed Section 9, which makes failed asylum-seeking families destitute. That was taken to the court of judicial review, which decided that the Immigration Service was acting within its primary function. It rejected the request that families should not be treated in this way.
	I again thank your Lordships for your patience at this hour. I welcome the opportunity to raise these concerns with the noble Baroness, Lady Ashton, who piloted the Children Bill and is receptive to these concerns, and the noble Baroness, Lady Anelay, who has a particular interest in children. My aim is to encourage the authorities to think more carefully and deeply about the needs of vulnerable children. A short term in detention could be better for a family if it meant that their children will get back to their home country and be settled in quickly, rather than leaving them hanging around in this country in limbo. But it needs to be done in a thoughtful way. My amendment may fetter to a degree the discretion of the authorities, but a limited fettering would be a good balance to the drive in the other direction. I look forward to the Minister's response and I beg to move.

Baroness Anelay of St Johns: My Lords, the noble Earl, Lord Listowel, has no reason to apologise for bringing this forward. It is important and he is right to point out that he had to table this on Report. He would not be able to introduce it as a new matter of principle at Third Reading. I admire him for his fortitude and sticking with us until this time. I will be brief. Because this was a late tabling, the noble Earl, with his usual courtesy, today put on my desk a full briefing and a reference to the participation of my noble friend Earl Howe in the previous Bill. I am grateful to him for that. Although I took part in Divisions on that Bill, I did not have my eye on the intricate workings of it. I think that I was involved in the domestic violence and crime Bill at the time. I have not had an opportunity to discuss this matter with my noble friend because I was involved in the Identity Cards Bill yesterday, but I certainly undertake to do so between now and Third Reading.
	The noble Earl quoted the noble Baroness, Lady Ashton, in another guise. He repeated some words which go to the heart of the problem for the Government and, indeed, for us all:
	"On the question of IND, I hope that noble Lords can agree that a duty to have regard to the need to safeguard and promote the welfare of children could severely compromise our ability to maintain an effective asylum system and strong immigration control".—[Official Report, 17/6/04; col. 996.]
	It is here that the tension exists between the position argued by my noble friends Lord Howe and Lady Morris of Bolton, in her role as opposition Minister for Children, and the position of the Home Office. I am aware that in the past I have called repeatedly on the Government to make removals faster and tougher. But the other side of the argument is that one must have regard to the welfare of the children in that system, usually through no fault of their own. Moreover, if they are unaccompanied minors, special circumstances govern them, and they may have been put in that position by adults.
	I recognise the validity of the argument raised by the noble Earl. The problem the Government face in trying to resolve it is not one that may be achieved by Third Reading. However, I shall certainly discuss it with my noble friend to see if we can come forward with a common position.

Lord Dholakia: My Lords, like the noble Baroness, Lady Anelay, I came across this amendment only rather late in the day. I should like the noble Earl to know that I would certainly have put my name to it if I had seen it earlier.
	The noble Earl is absolutely right to propose this new clause. Ultimately we are not talking about the removal of a child, but about the provisions made to look after the welfare of children in relation to the three categories mentioned in the amendment. During the passage of the Children Bill the noble Baroness said:
	"We are sure that the amendment would have an impact on what we would be able to do in terms of removals and the ability of people to use the Bill for judicial review. It is for those reasons—and those reasons alone—that I cannot accept the amendment".—[Official Report, 15/7/04; col. 1464.]
	Let me take the noble Baroness back to what is being proposed here.
	The amendment refers first to Section 11 and how three categories from the Children Act might be imported. The first is the regional offices of the National Asylum Support Service. Those officers are not involved in removals, they are there to look after the welfare of children. For the centre manager of an immigration removal centre to be involved, the policy decision would already have been taken. All we ask is that when children are being held in a detention centre, the managers should look after their welfare. Lastly, the chief immigration officer at a port of entry should rightly be concerned with this. We have discussed how children should be interviewed, whether they understand the procedures and so forth. All these details need to be looked at carefully.
	The amendment is quite simple. It says nothing about removals and does not address the policy of immigration. It is therefore right and correct that these Section 11 matters should be included in the overall provisions of the Bill. Including provisions of this nature will put an acceptable face on our Immigration Service. People elsewhere will see that this is how we treat those immigrating to this country. It will be to the advantage of the Immigration Service and its support services. More importantly, it will be to the advantage of the managers of removal centres. I support the amendment.

Lord Hylton: My Lords, I thought I saw the noble Lord, Lord Adonis, in the Chamber not so long ago, who definitely has some responsibility for the welfare of children. But he, too, has melted away. I am very happy to support my noble friend in his amendment, both on the grounds of vulnerability which we discussed earlier, and in the interests of fully joined-up government between the department of the noble Baroness, the Department for Education and Skills and the Home Office. A concerted effort is needed to improve things.

Baroness Ashton of Upholland: My Lords, I am always grateful to the noble Earl, Lord Listowel, for his contributions on children. I have two senses of déjà vu, if I might be slightly frivolous. The first is the number of times the noble Earl has asked the House to forgive him for what are, as the noble Baroness, Lady Anelay, said, issues of critical importance, for which we would forgive him for ever for raising. That is one of his roles in life and we are grateful for it. Secondly, as the noble Earl has indicated, it was I who piloted—if that is the word—the Children Bill to become the Children Act 2004.
	My noble friend Lord Adonis was indeed here. He had no idea which amendment we were on. He is very busy with other issues. Had he known, I am sure that he would have stayed—he takes his responsibilities, which the noble Lord, Lord Hylton raised, extremely seriously and I know that he will read our conversations with interest.
	I do not want to detain the House longer than I need to, although this is important. The noble Baroness, Lady Anelay, has hit the proverbial nail on the proverbial head. I do not suppose it will surprise any noble Lord to know that, when we came to this issue in the passage of the Children's Bill, I for one was keen to see whether we could accept the amendment. The principle of ensuring that our children are safe, whoever they are, and particularly those who are vulnerable, is, I hope that the noble Earl will agree, as dear to my heart as it is to his. It is a fundamental part of what the Government do, through the work we have done in legislation, Every Child Matters, the bringing together of children's issues and so on. We have sought to make children a much more central part of the way in which we approach policy and legislation. I know that that is supported on all sides; I am not making a party political point at all in saying it. But that approach is still relatively new.
	I looked at the consequences of trying to agree to this amendment. As the noble Earl would expect, I probed them at enormous length. I remembered that, before I had had any briefing on this issue, the noble Earl and I had talked about it and had faced the tricky issue that the noble Baroness has quite rightly raised—that if you prevent people from doing what is essentially their primary purpose, or you undermine it without meaning to, that has potentially great repercussions. We discussed earlier the critical importance of ensuring that, when people should not be here, they go back and get their children settled in the community as quickly as possible. The answer is not always to be here, by any means.
	It is clear, if you look at the way this would work, that if a chief immigration officer said that he wanted to return a family of failed asylum seekers, the decision could, under the amendment, be challenged in the courts on the basis that removing their access to health and education in Britain and returning them to a country where the education and healthcare may well not be of the same standard is not consistent with the duty to make arrangements to safeguard and promote children's welfare. It is possible, legislatively, that if this were inserted it would become virtually impossible to return any family with children or any accompanied child or young person.
	I am not prepared to do that. I completely accept that we want to ensure that we support vulnerable children, but this is not the means to do so, because we would end up in a position where we could, in an odd way, make the situation worse for those children and young people and their families. To go back to the point made by the noble Baroness, Lady Anelay, about having effective Home Office policies and immigration and asylum controls, we have to have a position where, if people should not be here, be they individuals or, in this context, families, they should go. That is an important part of what we are seeking to do. As I explained to the noble Earl, Lord Howe, with whom I immensely enjoyed working on the Children Bill—he is a man of great integrity, who I know felt strongly and passionately about these issues—that is the basis on which I have to reject this amendment. I simply cannot put our immigration services in that position. It would be wrong to do it. That does not mean that we and they do not care about the welfare of children, but we simply cannot—by accident, as it would almost be—undermine the services in that way. I do not think that the noble Earl would wish that. It would undermine what we have and what we are seeking to do.
	The noble Earl knows too that I will do anything that I can to try to support his objectives of making sure that vulnerable children are adequately protected and looked after, but this is simply not the way to do it for the reasons that I have given. I hope that the noble Earl will feel able, on that basis, to withdraw the amendment.

The Earl of Listowel: My Lords, I am grateful to my noble friend Lord Hylton, the noble Baroness, Lady Anelay of St Johns, and the noble Lord, Lord Dholakia, as well as to noble Lords who have spoken in support of the amendment or at least expressed their sympathy with its intent. The Minister too expressed sympathy with its intent, but deep concern about its impact in practice.
	The Minister gave a helpful and generous response, and I shall study it carefully. Since the previous Bill in 2004, we now have a new Home Secretary. Perhaps circumstances have changed to some extent.

Baroness Ashton of Upholland: My Lords, the noble Earl will remember that the Children Bill was enacted under his instruction. I would not suggest that my right honourable friend the Secretary of State would feel any differently about this matter.

The Earl of Listowel: My Lords, I note what the Minister says. The Home Office seems somehow to trump every other department around it. I may be unfair and wrong in my observation, but that seems to have happened in the past.
	I encourage the Minister not to give up all hope of looking again at this problem and how such arrangements might work in practice. As I said only last week, the relevant court looked at an approach for judicial review under Section 9 of the power to make families destitute to encourage them to return to their home countries. It found that the immigration service was acting within its remit in doing so. Perhaps that gives some comfort to the Minister.
	Perhaps a compromise is possible before Third Reading. As the noble Lord, Lord Dholakia, said, the Government could look at the different arms of the immigration service as it deals with children and families. Perhaps one arm could be brought under Section 11, with a sunset clause applying after two years. One could at least see how it worked and whether the consequences would be as grave as the Minister clearly fears. There would be an opportunity to evaluate that pilot scheme, just as there has been a very useful evaluation of Section 9 in the previous Bill.
	I know that we all wish to work in the best interests of children. The danger arises when a system becomes unthinking because it is driven towards a particular target. I am seeking to encourage that system to think more carefully about children as it moves towards its necessary target. It is a little like doing maths and showing the working. That is what I am asking: I want to see the working behind the system. I think of the league tables in schools. There has been so much concern to set down a clear target for pupil achievement, but the softer targets of including, and working with, the more vulnerable children are harder to deliver. The Government have introduced value-added elements to the system to balance it. I am asking for more balance in this area and a proportionate response which achieves the aims of the Government—which we all wish—but does so in a humane way. I again thank the Minister for her response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Schedule 3 [Repeals]:

Baroness Ashton of Upholland: moved Amendments Nos. 72 to 75:
	Page 36, line 2, column 2, leave out "Section 3C(2)(b) and (c)."
	Page 36, line 20, at end insert—
	
		
			  
			  "Anti-terrorism, Crime and Security Act 2001 (c. 24) Section 33." 
		
	
	Page 36, line 22, column 2, leave out "82(2)(d) and (e)." and insert "82(3)."
	Page 36, leave out line 23.
	On Question, amendments agreed to.
	Clause 59 [Commencement]:
	[Amendments Nos. 76 and 77 not moved.]
	House adjourned at eleven o'clock.
	Tuesday, 7 February 2006.